Jоhn Doe ("Doe"), a former Belmont University ("Belmont") student, brings this action arising out of Belmont's investigation of accusations of sexual misconduct made against him by a female student ("Student S.").
The Court must first resolve Belmont's Motion to Strike because it will determine, in part, the evidence before the Court for purposes of summary judgment. Belmont moves to strike Exhibit A to Doe's response to the motion for summary judgment because (1) Doe did not timely identify that document without substantial justification and (2) his failure to do so resulted in harm when Doe relied upon that document to oppose Belmont's dispositive motion. Doe calls the motion "strange." It is not.
As discussed at length in the Court's Memorandum Opinion on Belmont's motion for judgment on the pleadings (Doc. No. 40), this case involves Belmont's Sexual Misconduct Policy, the relevant version of which was contained in the 2016-2017 Belmont Student Handbook ("Bruin Guide"). Page 21 of the Bruin Guide contains specific language that is relevant to the disposition of certain claims in this case. The Complaint, filed in 2017, did not attach the Bruin Guide, but Belmont attached it in PDF version to its Amended Answer prior to filing the motion for judgment on the pleadings. (Doc. No. 21-2.) Exhibit A to Doe's summary judgment response is page 21 of the Bruin Guide that is slightly different than the PDF version produced by Belmont so long ago. Doe contends that this is the online version (i.e., "magazine version") of the Bruin Guide that he and his counsel have relied on since 2016. But Exhibit A is a December 8, 2018 screenshot of the online version of the Bruin Guide. (See Doc. No. 63-1.) Doe has never before disclosed the purported existence of any alternate version of Page 21 or any theory of liability relying on it. Doe argues that, because Belmont should be familiar with its own materials, Doe cannot be at fault for not disclosing his purported reliance on an alternate version of the Bruin Guide prior to his response to the motion for summary judgment. As discussed below, the Court finds very significant problems with Doe's position.
Even if Doe had put Belmont on notice that he generally intended to rely on the Sexual Misconduct Policy, at no point prior to the response to the motion for summary judgment did Doe or his counsel disclose or describe the purported alternate page 21 (i.e., Exhibit A) or discuss any legal theories based upon purported differences between versions of the Bruin Guide in existence in 2016-2017. Doe did not identify the purported alternate page 21 in his initial disclosures or in response to interrogatories concerning bases for liability. (Doc. No. 61.) Moreover, in the briefing on the motion for judgment on the pleadings, Doe made no mention of any purported reliance on a purported alternate version of the 2016 Bruin Guide even though the text of the Sexual Misconduct Policy was at issue. (Doc. No. 26.)
These failures to disclose in discovery and motion practice were compounded when Doe was deposed. Counsel for Belmont asked Doe numerous questions regarding Belmont's handling of his investigation. (Doc. Nos. 61, 71.) At no point did Doe refer to the purported alternate Exhibit A specifically (or even the "magazine version" of the Bruin Guide generally), nor did Doe espouse a theory of liability based upon either. (Id.) This was particularly evident regarding Doe's negligence claims, where Exhibit A has the most potential impact. At his deposition, Doe responded that, aside from the sanction he received, he could not think of any other asserted breach of care. (Doc. No. 71.) In the response to the motion for summary judgment, citing Exhibit A for the first time, Doe now argues a breach of care related to purportedly different versions of page 21
Equally compelling is that Belmont has - to put it mildly - substantially undermined Doe's claim that Exhibit A (i.e., the screenshot of page 21 of the Bruin Guide taken in December 2018) was in existence in 2016. Counsel for Doe submitted a Declaration asserting, without any corroboration, that Exhibit A is "consistent in all ways" with the Bruin Guide in use in 2016-2017. (Doc. No. 50-2.) Belmont, however, has offered the sworn Declaration of Lori Chadoin, the current Director of Title IX Compliance and Prevention Programs, stating that Exhibit A contains revised language that was authored in August of 2018 and published online in October of 2018 and thus could not have appeared before then for reliance by Doe or his counsel in 2016-2017. (Doc. No. 62-2.) Ms. Chadoin, who supports her declaration with email correspondence and explanatory references to specific provisions, therefore states her view that the Declaration of Doe's counsel that Exhibit A is "consistent in all ways" with the 2016-17 version is necessarily "false." (Id. at 2.) Specifically, Ms. Chadoin explains that (1) she authored the relevant changes to the Sexual Misconduct Policy in August of 2018, (2) the changes were implemented "on or about October 1, 2018," and (3) after conducting a search, "there is no record of any [relevant] change ... prior to my change in August of 2018."
Federal Rule of Civil Procedure 26(a)(1)(A)(ii) requires a party to timely disclose "all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment." The Federal Rules also require that a party who has made a disclosure under Rule 26(a), or who has responded to an interrogatory, request for production, or request for admission, must supplement or correct its disclosure or response "in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing." Fed. R. Civ. P. 26(e)(1)(A). "If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially
" Federal Rule of Civil Procedure 37(c)(1) requires absolute compliance with Rule 26(a), that is, it "mandates that a trial court punish a party for discovery violations in connection with Rule 26 unless the violation was harmless or is substantially justified." Roberts ex rel. Johnson v. Galen of Va., Inc.,
The Court takes these factors in order, beginning with the surprise to Belmont. Belmont essentially maintains that Doe's reliance on Exhibit A in the response to the motion for summary judgment is a complete and unfair surprise because (1) during initial disclosures or discovery, Doe never produced a copy of page 21 from a 2016-2017 magazine version of the Bruin Guide with purportedly different language than the PDF version of the Bruin Guide produced by Belmont early in the case; (2) prior to the summary judgment response, neither Doe nor his counsel have ever articulated an argument or theory of liability based upon the existence of purportedly different language on page 21 of the "magazine version" of the 2016-2017 Bruin Guide; and (3) during his deposition, Doe never referred to differences between versions of the Bruin Guide or complained of Belmont's conduct in connection therewith. As discussed, Belmont supports its contention of unfair surprise with evidence that Exhibit A did not even exist during the period in which Doe asserts that he relied upon it, to which Doe has offered basically nothing in response aside from personal assurances to the contrary. Because Belmont contends that Exhibit A did not exist in 2016, Doe's contention that its existence should not come as a surprise to Belmont completely misses the mark.
Second, it would be very difficult for Belmont to cure the surprise. Having no notice of the purportedly competing version of the page of 2016-2017 Bruin Guide in Exhibit A for the entire discovery period (and believing no changes were made to the policy until the fall of 2018), Belmont did not pursue any discovery concerning the "magazine version" of Exhibit A or question Doe during his deposition about his alleged reliance upon it. Discovery has closed, the dispositive motion deadline has passed, and the trial date is only weeks away. Only after Belmont filed its motion for summary judgment did Doe respond with reliance on Exhibit A, leaving Belmont able to respond only by means of a short reply brief. Curing the surprise would involve, at a minimum, reopening
Third, if the evidence were allowed, it would be disruptive to any trial. Allowing the time necessary for additional discovery and re-briefing of summary judgment would require postponing the rapidly approaching pre-trial conference and trial date to a significantly later date in this already-aging case. This is simply not fair. Belmont may already be involved in trial preparations concerning certain theories of the case that would need to be substantially modified. These late-in-the-game changes are what Rules 26 and 37 are designed to prevent.
Fourth, the evidence is important. It is relevant to multiple claims. In particular, Doe has used it to articulate a theory of negligence. In addition to bearing on substantive claims, it is also relevant to how a jury might view Belmont's credibility regarding implementation of the Sexual Misconduct Policy.
Finally, the Court considers Doe's explanations for the late disclosure/production of Exhibit A. The Court will not make judgments about a party's underlying motivations. However, the Court does find Doe's explanation and the disclosure and use of Exhibit A to be highly curious, particularly in the face of Ms. Chadoin's Declaration. Ms. Chadoin has stated under oath that there was no relevant difference between page 21 of the PDF and "magazine version" of the Bruin Guide prior to 2018. In the Court's view, Doe has provided no logical justification for not producing an alternative version of Exhibit A if it existed prior to 2018 (or even discussing theories of liability based thereupon).
The balance of these factors weighs in favor of a finding that Doe's disclosure and discussion of Exhibit A for the first time in opposition to the motion to summary judgment in December 2018, where Doe and his counsel claim that it has existed and they have relied upon it since 2016, is not substantially justified or harmless. Under Federal Rule of Civil Procedure 37, exclusion of Exhibit A for purposes of the pending summary judgment motion is appropriate. See, e.g., Baker v. Shelby Cty. Gov't, No. 05-2798-B/P,
II. Belmont's Motion for Summary Judgment
A. Facts
Belmont is a private university located in Nashville, Tennessee, that accepts federal funding. (Doc. No. 51 at ¶ 1.) Doe, a resident of Tennessee, matriculated at Belmont in 2015 and intended tо graduate. (Id. at ¶ 2.) Doe - like every other student - was bound by a pledge to at all times "exemplify behavior which is consistent with the University's Code of Conduct." (Doc. No. 51 at ¶ 2.)
1. Belmont's Relevant Policies
Belmont's Student Handbook - the Bruin Guide - sets forth certain relevant
Belmont also has a Deceptive Behavior Policy, which prohibits a student from providing false or misleading information to a university official regardless of whether the recipient is deceived. (Doc. Nos. 51 at ¶ 42; 48; 21-2 at 26.) In other words, Belmont students are charged with the responsibility of being honest to university officials at all times. When a student is being investigated for another alleged violation, a determination can be made regarding a violation of the Deceptive Behavior Policy based upon a preponderance of the evidence at any time; there does not need to be a separate investigation. (Doc. Nos. 63-3 at 3; 59 at ¶ 4.) Belmont also has residence hall visitation policies that prohibit overnight guests of the opposite sex in residence hall rooms and prohibit opposite sex guest visitation except during approved visitation hours. (Doc. No. 51 at ¶ 46.) Under these policies, it is primarily a host's responsibility to make sure that visitors are checked in and follow visitation hours; however, all Belmont students are required to follow the rules at all times, whether they live on campus or not. (Doc. No. 59 at ¶ 7.) Finally, Belmont has an Honor Pledge concerning academic matters that, among other things, delineates "unauthorized collaboration on an academic assignment" as "Obtaining Unfair Advantage." (Doc. Nos. 51 at ¶ 87; 47-10.) Likewise, "providing material, information or other assistance" that violates the expectations of the Honor Pledge is considered "Aiding and Abetting" a violation. (Doc. Nos. 51 at ¶ 87; 47-10.)
2. The Sexual Misconduct Policy Accountability Process
Broadly speaking, the Bruin Guide sets forth two "accountability processes." (Doc. No. 51 at ¶ 6.) Belmont has a general accountability process for alleged violations of its Code of Conduct, and a specific accountability process for alleged violations of Belmont's Sexual Misconduct Policy.
3. The Complaint Against Doe by Student S.
Doe and Student S. met in May 2016. (Doc. No. 51 at ¶ 8.) They were both on summer staff for Belmont and lived in the same dorm over the 2016 summer.
4. Belmont's Title IX Department Begins the Investigation of Student. S.'s Complaint
Molly Zlock ("Zlock") was Belmont's Assistant Dean of Students and Title IX Coordinator. (Id. at ¶ 15.) In 2007, Zlock received a law degree from Seton Hall University School of Law. (Id. at ¶ 16.) She has been in good standing with the New Jersey Board of Bar Examiners since 2007, and she remains licensed to practice in that state. (Id.) Zlock has practiced law in both the public and private sector, including a judicial clerkship. (Id.) Immediately prior to joining the staff at Belmont, Zlock was the Director of Students at Seton Hall University School of Law. She assumed her role at Belmont in 2015.
In her role as Title IX Coordinator at Belmont, Zlock, along with others, administered and supervised Belmont's Title IX compliance program and Sexual Misconduct Policy. (Id. at ¶ 17.) After the intake of Student S.'s complaint, on October 7, 2016, Zlock advised Student S. of the finding of reasonable cause to proceed with the Doe investigation and assigned two Resident Directors, Bryan Miller and Hillary Bruner, to serve as neutral investigators of Student S.'s complaint. (Id. at ¶ 18.) Miller and Bruner had fully participated in an investigator training Zlock conducted in the summer of 2016. (Id.)
On October 11, Zlock emailed Doe to advise him that a complaint of sexual misconduct had been made against him. (Id. at ¶ 19.) This email attached a Sexual Misconduct Accountability Form advising Doe of the identity of the сomplainant, the date of the incident, the reported location of the incident, and that the alleged violations were (1) non-consensual sexual contact and (2) non-consensual sexual intercourse. (Id.) Zlock's email and the accountability form provided Doe with a description of the investigatory process as well as a statement of his rights and responsibilities in the investigation. (Id. at ¶ 20.) Pursuant to Belmont's standard practice in this context, Zlock also issued a no-contact order prohibiting Doe and Student S. from contacting each other either directly or through third parties. (Id. at ¶ 21.) Zlock encouraged Doe to review the Sexual Misconduct Policy in Belmont's Bruin Guide, and Doe read the Policy multiple times over the next few days. (Id. at ¶ 22.) Zlock also offered to meet with Doe to discuss the investigatory procedures and answer any questions. (Id.) At this time, Zlock was unaware that Doe was also under investigation by the Director of Student Accountability for multiple dorm visitation violations.
On October 12, Doe and his father met with Zlock to discuss the investigation process. (Doc. No. 71-1 at 40-42.) Doe testified that the process that Zlock explained would be followed during the investigation was consistent with what he had read in the Sexual Misconduct Policy. (Id. at 43.) Doe also testified that Zlock assured him that "it would be a fair and impartial investigation." (Id. at 41.) Later that day, Doe emailed Zlock and stated that he felt that he should take a leave from his position on Belmont's student Accountability Council pending resolution of the sexual misconduct investigation.
5. The Investigation
The investigation of Student S's complaint lasted from approximately October 11 to December 1, 2016. (Id. at ¶ 27.) Doe was represented by counsel, a common practice in Title IX investigations.
Doe and Student S. were interviewed during the investigation. (Doc. No. 51 at ¶ 27.) In Doe's initial interview with the
The parties were given the complete investigatory file on October 28, 2016 and were instructed to submit their final statements on the matter. (Doc. No. 51 at ¶ 28.) On November 2, 2016, Doe's father sent an e-mail complaining that "[they] were told that Belmont would contact his professors to get him some additional consideration during this time," but that Doe "hasn't seen any evidence that exceptions are being made and he has had to miss several classes and exams as a result." (Doc. No. 63-10.) Doe's father asked what could be done to take advantage of accommodations. (Id.) Record evidence reflects that two weeks earlier Zlock had emailed at least one of Doe's professors requesting leniency and understanding for absences and any need to reschedule exams due to involvement in a confidential traumatic event. (Doc. Nos. 48; 48-2.) In addition, after this time, at Zlock's instruction, an additional witnеss proposed by Doe (Student T.) was interviewed by investigators, and on November 4, his statement was submitted to both parties for further comment.
6. The Determination Letter, Sanctions, and Appeals
On December 13, 2016, Zlock provided a written outcome letter ("Determination Letter"), signed by her, to both Student S. and Doe. (Doc. Nos. 51 at ¶ 31; 21-1.) In the Determination Letter, Zlock found that the investigation did not establish by a preponderance of the evidence that Student S. had suffered non-consensual sexual contact or non-consensual sexual intercourse. (Doc. Nos. 21-1 at 13; 48.) Accordingly, Doe was found not responsible for these alleged violations, and was exonerated under Title IX for any alleged violation of Belmont's sexual misconduct policy. (Doc. No. 21-1 at 13.) Zlock did, however, find Student S.'s statement of the physical rеlationship between the parties to be both credible and largely corroborated by the text messages and other documentation. (Doc. Nos. 51 at ¶ 33; 21-1 at 13.) Zlock found Doe had the opportunity to be truthful in both his initial statement to the investigators and his final statement after having reviewed Student S.'s text messages and instead chose to "purposefully complicate the investigation" through the submission of false or misleading information. (Doc. No. 51 at ¶ 41; 21-1 at 13.) Furthermore, Zlock found that Doe had been "purposefully untruthful." (Doc. Nos. 51 at ¶ 34; No. 21-1 at 13.) Zlock also found that "the evidence establish[ed] that [Doe]
As a sanction for the violations of the Deceptive Behavior Policy and visitation policies, Zlock suspended Doe for the Spring 2017 semester. (Doc. No. 21-1 at 13-14.) Belmont defines suspension as separation from the university for a specific period with eligibility to reapply to return for the following semester. (Id.) Doe completed his exams and received credit for all coursework performed in 2016. (Doc. No. 51 at ¶ 53.) Accordingly, Doe was eligible to reapply to return to Belmont for the summer of 2017. (Doc. Nos. 21-1 at 13-14; 48.) Upon returning, Doe was to be placed on institutional probation for the remainder of his time at Belmont, precluded from holding a leadership position in any co-curricular organization for the remainder of his time at Belmont, and prevented from having any contact with Student S.
Doe appealed the sanctions he received based upon his Deceptive Behavior Policy and visitation policies violations. (Doc. No. 51 at ¶ 54.) Doe stated that he was "not appealing the decision of Ms. Zlock," but only the sanctions. (Id.) On December 28, 2016, the Assistant Dean of Students for Residence Life, Anthony Donovan, upheld the Determination Letter and sanctions. (Id. at ¶ 55; Doc. No. 48-7.) Among other things, Donovan concluded that "[t]he preemption clause (outlined in the Bruin Guide, page 20) empowers the Title IX process to subsume all other alleged violations and provides control over all violations including but not limited to those that might be committed in the investigation process." (Doc. No. 48-7 at 1.) Donovan further found that Zlock "exercised great care in separating her finding of [Doe's] impediment of the investigation of lack of truthfulness from unduly influencing her decision in finding [Doe] not in violation of the Sexual Misconduct Policy." (Id. at 1-2.) Donovan found the sanction for untruthfulness severe but allowable and justified, particularly given the cumulative visitation violations. (Id. at 2.)
On January 5, 2017, Associate Provost and Dean of Students Jeffery Burgin issued a final outcome letter upholding Donovan's appellate determination. (Doc. Nos. 51 at ¶ 56; 48-8.) Burgin concluded that the sanctions were appropriate for someone held responsible for "mislead[ing] the investigators
7. Code of Conduct Violations Handled by Briscoe
Although there are several ways that violations of the Code of Conduct can be handled under the general accountability process, Briscoe routinely handled disciplinary matters administratively for commuter students such as Doe. (Doc. No. 51 at ¶ 69.) While the sexual misconduct investigation was underway, Briscoe dealt with several alleged Code of Conduct violations by Doe. Although Zlock was aware that Briscoe had charged Doe with these violations, there is no record evidence that she had any involvement with or input into the discipline that Briscoe issued for them.
The first of these incidents occurred around 3:00 a.m. on October 1, 2016, when Doe was involved in a dormitory visitation violation in which he, another male student, and two female students were visiting after hours in a male student's dormitory room. (Doc. No. 51 at ¶ 65.) The Resident Advisors on duty reported the incident and issued a Notice of Community Responsibility to Doe and the other students involved. (Id. at ¶¶ 66-67; Doc. No. 47-3.) Doe admitted the violation and checked the box on the Notice for "I accept responsibility." (Doc. Nos. 51 at ¶ 68; 47-3.) On October 19, Briscoe held an administrative inquiry on the appropriate sanction for this violation. (Doc. No. 51 at ¶ 69.) Briscoe reviewed Doe's disciplinary file and learned that Doe had accepted responsibility for an earlier visitation violation on June 5 while living on campus as a residential student for Belmont's orientation program.
One week later, on October 26, 2016, Doe was again reported by Resident Advisors for a visitation violation. (Id. at ¶ 76.) A Notice of Community Responsibility was again issued; it explained that, after spending an hour together in the dorm, Doe and the female resident he was with saw the Resident Assistants for the dormitory, turned around, and went out the back door. (Id.; Doc. No. 47-7.) This time, Doe checked the box for "I deny responsibility." (Dоc. No. 47-7.) Briscoe emailed Doe on November 1, 2016, to advise him of the reported violation and offer to meet to discuss the disciplinary process. (Doc. No. 51 at ¶ 77.) Doe eventually agreed to meet for an administrative inquiry adjudicating the alleged violation on November 7, 2016, during which he again denied responsibility.
Finally, Briscoe also disciplined Doe for an Honor Code violation in this timeframe. In November of 2016, Belmont required students to take and successfully pass an online computer proficiency test on Microsoft Word, Excel, and PowerPoint. (Id. at ¶ 85.) On November 29, 2016, Briscoe received an e-mail from a Belmont employee Facebook monitor, attaching a posting made by Doe on Belmont's Class of 2019 Facebook Page. (Id. at ¶ 84.) In response to another student's post asking, "does anyone know how to do computer proficiency," Doe posted, "I did a few for a small fee last year for some folks. Would be interested in discussing something similar this time around if anyone would like." (Id. at ¶ 86.) On December 1, 2016, an Honor Pledge Form was issued to Doe accusing him of "Obtaining Unfair Advantage" and "Aiding and Abetting" a violation of Belmont's Honor Pledge based on that Facebook posting. (Id. at ¶ 88.)
On December 15, 2016, Briscoe conducted an administrative adjudication, rather than an Honor Council, because students were preparing for and taking exams.
8. After Doe's One-Semester Suspension
Doe received full credit for the Fall 2016 semester at Belmont. (Doc. No. 71-1 at 61.) However, Doe did not apply to return to Belmont after his one-semester suspension. (Id. at 62.) As a result, his transcript was marked as "administratively withdrawn." (Id. at 63.) Doe and his father understood that his transcript did not reflect that he had been disciplined for a Title IX infraction. (Id. at 63-64. Doe applied for and was accepted to the University of Tennessee at Chattanooga subject to probation.
B. Legal Standard
In reviewing a motion for summary judgment, this Court will only consider the narrow question of whether there are "genuine issues as to any material fact and [whether] the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). A motion for summary judgment requires that the Court view the "inferences to be drawn from the underlying facts ... in the light most favorable to the party opposing the motion."
C. Discussion
Belmont moves for judgment as a matter of law on all remaining claims. Doe resists the motion. As this Court has explained before, the law does not allow the Court here to retry the university's disciplinary proceedings. It is not the role of the federal courts to set aside decisions of school administrators just because the court might view them "as lacking in wisdom or compassion." Plummer v. Univ. of Houston,
1. Count III - Title IX Retaliation
Title IX was enacted to supplement the ban on discrimination in the Civil Rights Act of 1964, and it is designed to prevent sexual discrimination and harassment in educational institutions receiving federal funding. Bonnell v. Lorenzo,
Title IX retaliation claims are generally analyzed using the same standards as Title VII retaliation claims. Fuhr v. Hazel Park Sch. Dist.,
Belmont contends that it is entitled to summary judgment because Doe has not established any of the elements of a prima facie case of Title IX retaliation. Doe responds that he has "easily" met the requirements.
Here, Doe's retaliation claim does not allege that he complained to anyone about discrimination on the basis of sex prior to or during the sexual misconduct investigation, and the summary judgment record is devoid of evidence of this requisite protected activity. To the contrary, Doe was, broadly speaking, satisfied with the Title IX process followed by Belmont. (Doc. No. 71-1 at 12.)
Doe unsuccessfully attempts to rely on the "zone of interest theory" espoused in Ollier v. Sweetwater Union High School District,
The Court's inquiry ends there. But the Court notes that, even if it were to assume, arguendo , that Doe engaged in a protected activity, the retaliation claim would also fail because Doe cannot satisfy the fourth element of the prima facie case - establishing the requisite causal connection between his protected activity and the adverse action. Prior to 2013, it was clearly the law in this Cirсuit that a causal connection could be established when a plaintiff proffers "evidence sufficient to raise the inference that [his] protected activity was the likely reason for the adverse action." Fuhr,
Assuming without deciding that Nassar's but-for standard applies, there is simply no evidence to support the conclusion that Belmont punished Doe "because" he defended himself as a respondent in a sexual misconduct inquiry. Indeed, this theory of causation defies logic. Four things are clear from the record: (1) Belmont cleared Doe in the Title IX investigation; (2) Doe was generally satisfied with the investigatory process employed by Belmont; (3) Belmont was within its authority, per the Bruin Guide's pre-emption clause, to sanction Doe for collateral violations regardless of the outcome of the Title IX charges; and (4) the investigation provided sufficient evidence from which Belmont could conclude, by a preponderance standard, that (a) Doe and Student S. engaged in multiple visitation violations and (b) Doe was deliberately deсeptive during the investigation. Zlock clearly delineated the collateral violations in the well-supported Determination Letter. Doe simply has not put forth evidence that Zlock sought to punish him for anything other than the cited violations, let alone "because of" Doe's Title IX defense.
It is not clear exactly what Doe argues to try to establish causation under any legal test.
For all these reasons, Belmont is entitled to summary judgment on Doe's Title IX retaliation claim.
2. Count II - Promissory Estoppel
The Court previously dismissed all of Count II except for a claim based Paragraphs 47 and 131 of the Complaint. That part of the Complaint contains an allegation that "Doe was assured the visitation violation would not be considered or intermingled with the [sexual misconduct] charge by Zlock and yet Zlock specifically mentions visitation violations in her [D]etermination [L]etter and bases her discipline on alleged visitation infractions[,]" and that, as a result, Zlock improperly sanctioned Doe for alleged actions he was not charged with.
A claim for promissory estoppel in Tennessee, also known as "detrimental reliance," has three elements: "(1) a party made a promise which the promisor should reasonably have expected to induce the action or forbearance of the promisee;
As discussed above, Doe testified that, at the outset of the investigation, Zlock encouraged him to read the provisions of the Sexual Misconduct Policy and explained that the process that would be followed during the investigation would be consistent with it. Specifically, the Sexual Misconduct Policy pre-empts the general accountability process such that it allows for punishment of collateral violations that arise during the investigation. (Doc. No. 21-2 at 12.) Doe testified during his deposition that he found the process that Belmont used to be consistent with the Sexual Misconduct Policy. At no time during his deposition did Doe mention any promise by Zlock or another Belmont official that the pre-emption clause would not apply in Doe's case and that he would be exempted from consideration of collateral violations that arose during the investigation of sexual misconduct charges. In short, Doe has put forth no evidence that Zlock (or anyone else at Belmont) made an unambiguous, explicit promise that Deceptive Behavior Policy or visitation policy violations that came to light during the sexual misconduct investigation would not be considered for punishment.
The Court need go no further, but it notes that Doe's promissory estoppel claim would fail for other reasons as well. Because Doe acknowledged that (1) he was informed about the Sexual Misconduct Policy and encouraged to read it, and (2) Belmont followed that policy during its investigation, Doe cannot establish a question of fact regarding whether he relied on any promise to his detriment. Also regarding detrimental reliance, Doe was expected to participate in the sexual misconduct investigation and be truthful regardless of whether collateral violations might become a concern. In other words, Doe has not articulated any purported "reliance" on Zlock's alleged promise other than the participation
In addition, Doe has not established a question of fact regarding the detriment he allegedly suffered, which must have been a substantial economic harm. Atria,
Doe's opposition focuses at length on the alleged interplay between visitation violations addressed by Briscoe and visitation violations addressed by Zlock in the Determination Letter. Doe argues that it was only in Zlock's depоsition, for the first time, that she asserted that the visitation violations for which she punished Doe in the Determination Letter were different from those considered by Briscoe. (See Doc. No. 50.) This is unpersuasive for two reasons. First, Doe appears to offer this argument based on the revised position that Belmont's explicit promise was only "to be fair" in the investigation. (Id. at 16.) But where, as here embodied in the Bruin Guide, there is a valid contractual relationship, Tennessee courts only recognize a claim for promissory estoppel in limited cases where the alleged promise operates to expand the terms of a contract. Thomas Energy Corp. v. Caterpillar Fin. Servs. Corp., No. E2014-00226-COA-R3-CV,
Accordingly, Belmont is entitled to summary judgment on Doe's remaining promissory estoppel сlaim.
3. Counts V and VII - Negligence and Gross Negligence
Under Tennessee law, a prima facie case for negligence includes the following
However, where the alleged "breach of duty" that a plaintiff alleges occurred is a breach of contractual obligations, regardless of whether the defendant was negligent in attempting performance, "the action remains in contract."
In the Complaint, Doe alleges that Belmont had a duty of care to conduct the Sexual Misconduct Policy accountability process "in a non-negligent way" and "failed to perform that duty." (Doc. No. 1 at ¶¶ 149-151; 159-161.) In his opposition brief, Doe reiterates this theory of liability and states that his negligence and gross negligence claims are based upon Belmont's duty to "uniformly enforce and apply its Sexual Misconduct Policy." (Doc.
Even assuming, arguendo , that Doe could avoid that problem, he still cannot succeed in advancing this claim. Assuming a university owes every student a duty to refrain from conduct that poses an unreasonable and foreseeable risk of harm, Atria,
Belmont contends that Doe has not raised a question of material fact regarding whether Belmont's conduct during the investigation posed an unreasonable risk of harm. Specifically, Belmont argues that the record reflects that the process it used to conduct the investigation was "thorough, transparent, and entirely consistent with the process set forth in the Bruin Guide." (Doc. No. 45 at 21.) As discussed herein, Doe testified during his deposition that the process that Zlock explained was consistent with the Sexual Misconduct Policy.
Q. And is there a specific area in which they did not exercise the care you feel like they should havе that forms the basis for your claim?
A. Yes, sir, with the sanctions that they assigned me.
Q. You feel like those sanctions were not merited?
A. Correct.
Q. ... Is there any other specific breach of care that you contend Belmont engaged in regarding your negligence claim?
A. No, sir, not that I can think of.
(Id. at 62.) Of course, showing mere disagreement with Belmont's preponderance-of-the-evidence substantive conclusions is a far cry from raising a question of material fact regarding whether Belmont was negligent in its duty of care to implement the Sexual Misconduct Policy accountability process in a non-negligent manner.
In sum, because they are wholly dependent upon the Bruin Guide, Doe's negligence and gross negligence claims are an impermissible second bite at the apple of contract claims dismissed from this action. Just as importantly, Doe has not raised a question of fact about whether Belmont breached its duty of care by applying the Sexual Misconduct Policy to him in a manner that posed an unreasonable risk of harm.
4. Count VI - Negligent Infliction of Emotional Distress
The elements of a claim for negligent infliction of emotional distress include the elements of a general negligence claim, as well as the additional requirement that a plaintiff must prove that a defendant's conduct caused a serious or severe emotional injury. Rogers v. Louisville Land Co.,
Belmont is entitled to summary judgment on this claim for the same reasons described above concerning Doe's failure to raise a question of material fact about Belmont's breach of any duty. In other words, because Doe has no viable negligence claim, he also has no viable negligent infliction of emotional distress claim. Doe's claim also fails as a matter of law because "the 'reasonable person' component of the emotional injury element of the tort has not been met."
Doe has also not introduced evidence of severe emotional injury resulting from the one-semester-suspension and related sanctions. Doe testified during his deposition that he has friends, has a social life, has hobbies, and is functioning well in the workplace. When asked to describe his emotional distress, Doe explained that it was distressful "[j]ust whenever I kind of sit down and think about where I could have been right now had all this not come up." (Doc. No. 71-1 at 70.) Doe stated further that it was "really hard" that he was "not going to be getting my degree in May like [his former classmates] will and getting to walk across thе stage. Or even just like when they came back on campus and everybody was - last day of school, whatever, those types of things just - each one of them is just a crushing blow to me."
Belmont is therefore entitled to summary judgment on Doe's negligent infliction of emotional distress claim.
5. Count VIII - Negligent Training and Supervision
The last of Doe's theories is that Belmont injured him through negligent training or supervision of its employees. Under Tennessee law, a negligent training or supervision claim may be maintained by establishing the elements of a negligence claim, plus the additional element that the employer had knowledge of the employee's unfitness for the job. Thompson v. Bank of Am., N.A.,
This count of the Complaint focuses solely on Molly Zlock. Doe alleged that Zlock "lacked the proper training to carry out her responsibilities" under relevant fedеral and state law and Belmont University's sexual misconduct policy and "committed negligent, grossly negligent, and intentional tortious acts that caused injury to Plaintiff." (Doc. No. 1 at ¶¶ 164-165.) This claim fails for two main reasons. First, as discussed above, Doe has failed to establish the basic elements of a negligence claim. Even when he frames the purported breach in terms of Zlock specifically, rather than Belmont as an institution, Doe still has neither (1) identified a source of duty that Zlock owed to Doe outside the contractual relationship established by the Bruin Guide and Sexual Misconduct Policy, nor (2) raised a question of fact about whether Zlock, acting on behalf of Belmont, breached a duty of care by applying the Sexual Misconduct Policy to him in a manner that posed an unreasonable risk of harm. Second, and equally important, Doe has not raised a question of material fact regarding the additional required element for this claim - that is, whether Belmont was aware that Zlock was unfit for her job. To the contrary, the record establishes that Zlock was an experienced, licensed attorney in good standing; a level four certified Title IX Coordinator, and an active member of the Association of Title IX Administrators. Doe has made no evidence-based challenge to Zlock's training in the administration and oversight of Title IX investigations. Setting insinuations about Zlock's motives aside, there is no record evidence that would allow a reasonable jury to conclude that Zlock was unqualified for her
Accordingly, Belmont is entitled to summary judgment on this claim.
III. Conclusion
The Court has recognized that sexual misconduct investigations on campus raise issues that are important to the community as well as very personal to those whose lives are touched. See Z.J. v. Vanderbilt Univ., No. 3:17-cv-00936,
An appropriate order will enter.
Notes
Due to confidentiality concerns and the sensitive issues involved in this case, pseudonyms are utilized to protect anonymity.
Counsel for Belmont declares that he presented this information to Doe's counsel; stated that, "[a]ccordingly, the current 2018 version [i.e., Exhibit A] could not have been something you or your client relied on in 2016"; and requested that counsel withdraw her Declaration and Exhibit A in lieu of the filing of a motion to strike. (Doc. Nos. 61, 61-6.) This request was refused. (Doc. No. 61-6.)
Counsel for Doe also suggests that Exhibit A must have existed in 2016-2017 because a different page of the 2018 "magazine version" still referenced Molly Zlock, the former Title IX Coordinator. Ms. Chadoin also explained in her Declaration that this reference to Ms. Zlock was in the Anti-Discrimination Policy, not the Sexual Misconduct Policy, and is irrelevant to this case. (Doc. No. 62 at 4.) Ms. Chadoin further explained that the Anti-Discrimination Policy was still being revised in late 2018, but that her name has clearly replaced that of Ms. Zlock under the Sexual Misconduct Policy. (Id.) It was therefore Ms. Chadoin who was responsible for revising the relevant policy as discussed above. (Id.)
Doe does not address this legal standard in response to the Motion to Strike, nor does he cite any Federal Rules or caselaw. Doe instead spills much rhetorical ink painting Belmont as an untruthful aggressor and himself as a victim of an unjust process. (See Doc. No. 66.) This has been of limited assistance in conducting this analysis.
The Chadoin Declaration, while highly persuasive for рurposes of this motion to strike, does not alone "cure" the problem created by Exhibit A for purposes of the motion for summary judgment. Rather, there would be a dispute of fact as to the progeny of Exhibit A. Only if Doe had timely identified his reliance on Exhibit A, or even alluded to a theory of recovery based upon differing versions of the Bruin Guide, could Belmont have conducted discovery and assembled a summary judgment record sufficient to "conclusively debunk [Doe's] theory that two versions of the [Bruin] Guide existed in 2016." (Doc. No. 67.) Belmont was not given that opportunity.
Doe's argument that he did not realize there was a difference between the two versions until briefing the summary judgment motion is wholly unpersuasive for two reasons. First, the argument is essentially a red herring because Doe never produced any version of page 21 in his initial disclosures or in response to interrogatories about his theories of liability such that he could later be entitled to complain about confusion. Second, even if the PDF version produced by Belmont early in this litigation was actually different from the version actually relied on by Doe and his counsel (which is not supported by the record), that Doe and his counsel claim to have not noticed this fact until briefing the summary judgment motion must inure to their own detriment, not to Belmont's.
The parties have put forth over 35 pages of facts and responses. These include some facts that are either immaterial or not properly supported by citations as required under the Federal or Local Rules. Belmont moves the Court to go line by line and strike factual references and argument not supported by the record. (See Doc. No. 59.) The motion is DENIED AS MOOT . The Court has reviewed the factual submissions and the record and relies only upon facts that are material and properly supported by the record.
The Sexual Misconduct Accountability Process begins with initial review of a complaint and any appropriate interim measures (e.g., a temporary no-contact order). (Doc. No. 21-2 at 15.) It then moves to a fоrmal investigatory process by notification to the respondent of the accusation of sexual misconduct and provision of a copy of the complainant's written statement. (Id. at 16.) Belmont's Title IX investigators, at least one of whom should be "neutral," then interview the complainant and respondent, who may present evidence and suggest witnesses. (Id.) Prior to completing an investigation, the investigators are required to email final party and witness statements and evidence to the complainant and respondent for their review; the parties may comment within two days. (Id. at 17.) The Title IX Coordinator then reviews the complete investigatory file and determines responsibility based upon a preponderance of the evidence standard; there is no opportunity for a "hearing." (Id.) In consultation with other campus leaders, the Title IX Coordinator may also impose sanctions. (Id.) Sanctions may include, alone or in some combination, a verbal reprimand, a "reflection essay," a fine, a permanent no-contact order, suspension, or expulsion. (Id.) Either party may appeal based on an asserted procedural error, new information, or a claim that no reasonable person could have arrived at a similar conclusion. (Id. at 18.) An appeal is promptly decided by an assigned "appellate officer," but the Dean of Students reserves the right to determine the final outcome. (Id.)
Doe offers the "disputed" fact that such ancillary discipline may only be issued in conjunction with a guilty finding under Title IX. (Doc. No. 59 at ¶ 3.) However, Doe cites no authority for this proposition and it is contradicted by the plain language of the Sexual Misconduct Policy.
Doe later became a commuter student during the Fall 2016 semester. (Doc. No. 47 at 3.)
Doe disputes this fact because it does not include the sexual position that was allegedly attempted. (See Doc. No. 51 at ¶ 13.) That detail is clearly both unnecessary and immaterial.
In 2017, Zlock's title became Director of Title IX and Prevention Programming. (Doc. No. 51 at ¶ 16.
Doe claims that he lacks sufficient information to assess the truth of these facts, which are derived from Zlock's Declaration. However, these facts are objectively verifiable, and Doe made no attempt to offer evidence to the contrary. Furthermore, Zlock, as an attorney, is charged with a duty of candor to the Court regarding her professional credentials. Accordingly, the Court accepts these facts as undisputed for purposes of summary judgment. Zlock left Belmont in late 2017 and is now Director of Title IX and Title IX Coordinator at Vanderbilt University.
Doe disputes this fact by citing to his own Declaration. (Doc. No. 51 at ¶ 24.) But in his Declaration, Doe only states that he informed Zlock that he was being investigated for dorm violations "during the investigation." This does not create a dispute of fact that, at the time that Zlock sent Doe her October 11 email initiating the sexual misconduct investigation, Zlock was unaware of those parallel alleged dorm visitation violations.
The Honor Council/Accountability Council is one of three ways Code of Conduct violations can be adjudicated at Belmont as part of the general accountability process (the other two ways being adjudication by a professor or administrative adjudication). (Doc. No. 47 at 2.) Doe had applied and been selected to join the Council at the start of the semester and had not yet participated in any hearings. (Id.; Doc. No. 71-1 at 39.) Each member of the Council must execute a commitment form that stresses his or her personal obligation to abide by Belmont's Code of Conduct. (Doc. Nos. 47; 47-1.)
Doe disputes this fact by citing to a portion of Briscoe's deposition testimony in which she vaguely references the email from Zlock but does not remember the e-mail's exact context. (Doc. No. 51-6.) However, from the language and context it is evident that Briscoe was discussing the email from Doe to Zlock that Zlock forwarded to Briscoe with аn introductory message, which is cited by Belmont. (See Doc. No. 48-3.)
Doe disputes this fact by asserting that "[he] and his family had conversations with Briscoe regarding the Title IX proceedings and Briscoe addressed the Title IX proceedings with Doe and his father." (Doc. No. 51 at ¶ 96.) However, in support of this assertion, Doe cites only to "Exhibit I" to Document Number 51, which is a three-page excerpt of the deposition of Doe's father that is irrelevant to this issue. Obviously, this is insufficient. Briscoe's sworn Declaration establishes that she was not involved in Zlock's Title IX investigatory process. (Doc. No. 47 at ¶ 21.) Furthermore, Briscoe discusses at multiple points in her deposition that she was "unaware" of the discipline Doe received for the violations considered by Zlock. (See Doc. No. 69-1 at 90-100.) Indeed, Briscoe could not recall receiving any communication from Zlock or anyone else concerning those violations or related punishment aside from the one instance - instigated by Doe - regarding Doe's withdrawal from membership on the Accountability Council. (Id. at 97.)
Prior to this investigation, Zlock had worked with counsel in other Title IX investigations without incident and without assessing sanctions against the party so represented. (Doc. No. 48.)
The "work" referred to by Doe was the Towering Traditions summer program at Belmont. (Doc. No. 59 at ¶ 17.)
There is a dispute of fact regarding when Doe submitted Student T.'s name as a witness. Doe claims it was during the investigation along with other witnesses, while Zlock states that it was after Doe received the investigatory file on October 28, 2016. (See Doc. Nos. 48; 51 at ¶¶ 27, 29; 51-8, 51-9.) The Court finds that this dispute is not material. The parties do not dispute that Student T. was interviewed as part of the investigation and that his statement was provided to them for review. Doe simply disagrees with the weight and credibility that Belmont assigned to Student T.'s evidence, neither of which are material here. (See Doc. No. 21-1.)
Doe disputes this fact by arguing that the "analysis" of Student S.'s text messages was conducted by his father, who works in the information technology field. (Doc. Nos. 51-9; 59 at ¶¶ 15, 16.) However, in his deposition, Doe could not remember whether it wаs done by him or his father and, during extensive questioning, he had little memory of the entire episode of challenging Student S.'s text messages, could not recall who challenged them, or even if it was done on his behalf. (Doc. No. 71-1 at 72-76.) Doe concluded the questioning by simply stating, "I cannot confirm or deny." (Id. at 76.) Beyond this, in Doe opposition brief, counsel for Doe does not appear to seriously dispute that the attack on Student S.'s text messages was submitted on Doe's behalf during the investigation, nor is it contended that the representations in question were made without Doe or his counsel's knowledge or approval. (See Doc. Nos. 51; 59.) Likewise, there is no serious contention that the Deceptive Behavior Policy does not extend to all materials submitted as part of a respondent's defense in an investigation. (Id.)
In her Declaration, Zlock states that the visitation violations were "not a major factor" in the assessment of the sanctions. However, as Doe correctly indicates, the Determination Letter does not distinguish the weight accorded to the findings regarding untruthfulness and visitation. (Doc. No. 51 at ¶ 47; 21-2 at 13.)
This was the only time Zlock issued sanctions for violation of Belmont's Deceptive Behavior Policy and visitation policies. Zlock stated that she only found such sanctions necessary under the "unique facts and circumstances" of this case when "Doe's statements departed from a good faith defense and became false and misleading information designed to needlessly complicate the investigation." (Doc. No. 48 at 10.)
Student S. also appealed the determination that Doe was not responsible for non-consensual sexual misconduct. As part of her appeal, Student S submitted new information alleging that Doe had violated the no-contact order between the parties by directing a family member of his to contact a co-worker of hers. (Doc. No. 51 at ¶ 57.) Donovan ordered that a separate investigation be conducted of this alleged violation. (Doc. No. 48-7 аt 2-3.) On January 6, Zlock advised Doe of this alleged violation by email, provided him the details of the investigation that would be conducted by Deputy Title IX Coordinator Dr. Donna Gwaltney, and explicitly informed Doe that she was recusing herself from the matter. (Doc. Nos. 51 at ¶ 58; 48-9.) Zlock did not participate in the investigation of the alleged no contact order violation and was not involved in the determination of responsibility or any sanctions issued. (Doc. Nos. 51 at ¶ 58; 48.) Doe has curiously filed a Declaration stating that Zlock never informed him of her recusal. He has not, however, denied receiving the January 6 email in which Zlock stated exactly that. Regardless, because this issue was raised by Student S. after Zlock's Determination Letter of December 13, it could not have played a role in her assessment of sanctions against Doe. (Doc. No. 51 at ¶ 59.)
Doe disputes this fact with no support. He only cites the Determination Letter, in which Doe is found not responsible for violations of the Sexual Misconduct Policy and responsible for collateral violations different than those considered by Briscoe. (Doc. No. 51 at ¶ 97.) Briscoe and Zlock's Declarations and deposition testimony establish that, in their discrete roles, they were considering different alleged violations in "completely separate process[es]." (Doc. Nos. 46-3; 47; 48; 69; 70.)
Doe had previously accepted responsibility for that violation and had been disciplined by the Resident Director for the dormitory, Ben Wood. (Doc. No. 51 at ¶ 71.)
Doe testified at his deposition that he does not recall the events around the October 26th violation, does not recall whether he was visiting a student in the dorm in question that night, does not recall the specifics of that night, and thus cannot state why he denied responsibility for the incident. (Doc. No. 51 at ¶ 79.)
In her deposition, Briscoe explained that she "usually cut off [Council hearings] right past Thanksgiving-ish so people can just start to focus on wrapping up the conclusion of their academic year." (Doc. No. 69-1 at 23.) Briscoe further testified that she discussed with Doe whether he preferred that Briscoe conduct an immediate administrative inquiry or wait for an Honor Council during the next semester, and that Doe had responded that he "wanted [her] to do it so he could get it out of the way." (Id. at 27.)
Discovery in this case has shown that in the previous year (2015), on two different occasions, Doe had similar Facebook exchanges with students regarding assisting students in some capacity for a fee. (Doc. Nos. 51 at ¶ 91; 71-15; 71-16 at 2.) Doe also maintains that those incidents were misunderstood. (Doc. No. 71-1.)
Doe had investigated other schools, but he did not follow through with the applications. (Doc. No. 71-1 at 62-63.)
Belmont contends that the conclusion Doe requests the factfinder draw from his evidence - i.e., moving from a generalized assertion of punishment for defending himself to a specific demonstration of a retaliatory motive under Title IX - requires making inferences. (See Doc. No. 45 at 8-9.) Direct evidence of retaliation does not require a factfinder to draw any inferences to conclude that unlawful retaliation was a motivating factor in an adverse action. Imwalle v. Reliance Med. Prods., Inc.,
When asked at his deposition if Zlock described the "process that would be followed during the course of th[e] investigation," Doe responded, "Yes." (Doc. No. 71-1 at 12.) When asked if that process was "consistent with what [he] had read in the [S]exual [M]isconduct [P]olicy," Doe responded, "Yes." (Id.) And when asked if that was, "in fact, the process that was followed to the best of your recollection," Doe responded, "the general framework of the investigation was pretty much how I expected it." (Id.) Doe further testified that, other than in one instance when he did not receive an extension of time to take an accounting test and another instance when the interview of Student T. was delayed but ultimately conducted and included as part of the investigation, there was no other process or procedure that he requested in the course of the investigation that he did not receive. (Doc. No. 71-1 at 14.)
This conclusion does not differ even if the assertion is that Briscoe retaliated against Doe. First, there is no record evidence that Briscoe was involved in the Title IX investigation. Second, there is no record evidence that Zlock influenced Briscoe's separate disciplinary processes. Finally, and most importantly, there is no record evidence that Doe complained of discrimination of the basis of sex to Briscoe or in connection with Briscoe.
This is even more clearly the case for the far more attenuated discipline Doe received from Briscoe for parallel Code of Conduct violations, because Briscoe was not even involved in the Title IX investigation.
In this section of his opposition brief, Doe discusses the "damage" the he has encountered as a "direct and proximate cause" of Belmont's retaliation. (See Doc. No. 50 at 15.) This is not the relevant legal analysis.
Again, even if the claim were that Briscoe retaliated against Doe, it would likewise fail on causation grounds as well, because each of the three Code of Conduct violations for which Briscoe disciрlined Doe was independently reported to her by university employees. These intervening reports dispel reliance on the temporal proximity of Briscoe's actions to the Title IX investigation.
Paragraph 47 specifically refers to the visitation violation that arose during the sexual misconduct investigation. (Doc. No. 1 at ¶¶ 45-46.) Paragraph 131 refers to all of the violations for which Doe was sanctioned by Zlock (id. at ¶ 131), which include both the Deceptive Behavior Policy and the visitation policies violations punished in the Determination Letter.
Nor is there record evidence of any kind that any promise was made to Doe that Briscoe would not consider other, unrelated Code of Conduct violations during the same time frame that the Title IX investigation was ongoing.
This limitation arises from the idea that, where two parties enter into a contractual arrangement, their obligations to each other generally arise only out of the contract itself. Thomas & Assocs., Inc. v. Metro. Gov't of Nashville, No. M2001-00757-COA-R3-CV,
The only actual problems with implementation of the accountability process that Doe could identify at his deposition were (1) a problem rescheduling an accounting test, which was both de minimis and not in Zlock's full control, and (2) a delay in interviewing Student T., which Belmont rectified. (Doc. No. 71-1 at 12-14.) Doe also testified that there may have been one or more occasions where he needed more time to respond during the investigation, but he could not recall ever not being given more time to respond. (Id.)
As discussed in the portion of this opinion dealing with the Motion to Strike, the Court is not considering Doe's late-raised theory regarding "alternate versions" of the Bruin Guide, which, in any event, would only be relevant if Doe could circumvent the limitation on recasting contract claims in tort.
Doe's inability to graduate, even if credited as having an impact upon him, is significantly the result of choices Doe made for himself. Doe was merely suspended from Belmont for one semester for collateral violations with certain limitations uрon his return. But Doe's opposition brief paints a curiously different picture of the world than is reflected in his deposition testimony. (See Docs. No. 50 at 21; 71-1.) In it, Doe asserts that he "couldn't go to school, couldn't graduate, couldn't get into another school...." (Doc. No. 51 at 21.) And yet Doe could have returned to Belmont after one semester. He could have matriculated at UT-Chattanooga after he was accepted. And, because he had approximately 60 credits, Doe could have graduated from either of those institutions before too long.
Doe's opposition brief states that, once he was charged with sexual misconduct, he "saw a psychiatrist and took medication for the first time in his life." (Id.) This assertion has no citation, and it is absent from the parties' statements of facts. Furthermore, without revealing confidential information, this statement appears so at odds with Doe's deposition testimony that it is difficult for the Court to fathom how counsel included it in his brief without explanation. (See Doc. No. 71-1 at 67-70.) Regardless, if this is a belated attempt to establish a dispute of fact regarding Doe's mental state, Doe obviously has not sufficiently cited to the summary judgment record. See Fed. R. Civ. P. 56(c).
In his opposition brief, Doe shifts gears from the Complaint and argues that it was Zlock's investigators who lacked training. (Doc. No. 50 at 21.) The Court will not entertain this new argument because Count VIII of the Complaint, which was very specific to Zlock, did not encompass the investigators and thus did not give Belmont notice to defend against such a claim. See, e.g., Desparois v. Perrysburg Exempted Village Sch. Dist.,