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Doe v. Northern Michigan University

United States District Court, W.D. Michigan, Northern Division

May 28, 2019

JOHN DOE, Plaintiff,
NORTHERN MICHIGAN UNIVERSITY, JANET KOSKI, DONNA BEAUCHAINE, in their individual and official capacities, and CHRISTINE GREER, in her official capacity only, jointly and severally, Defendants.



         Plaintiff, John Doe, filed the instant case alleging that Defendants violated his constitutional and federal statutory rights, breached a contract that Plaintiff had with Defendant Northern Michigan University (NMU), and were negligent when Defendants expelled him from the university as a disciplinary sanction for sexual misconduct. Plaintiff argues that the sexual activity with his accuser, Jane Roe, was consensual. Plaintiff seeks both monetary damages and equitable relief.

         Specifically, Plaintiff claims that Defendants Janet Koski and Donna Beauchaine, in their official and individual capacities, and Defendant Christine Greer in her official capacity only, violated Plaintiff's constitutional right to procedural due process (Count I). Plaintiff further claims that Defendant NMU violated Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, by discriminating against him as a male during the disciplinary process (Count II). Plaintiff also claims that Defendant NMU breached its contract with Plaintiff when Defendant NMU allegedly failed to follow its own policies, constructed policies that were unfair, and gave no rationale for its decision (Counts III, IV, and V). Finally, Plaintiff claims that Defendants NMU, Koski, and Beauchaine were negligent, negligent per se, and/or grossly negligent in their handling of Plaintiff's disciplinary action (Counts VI and VII[1]).

         Defendants filed a motion to dismiss, stating that Plaintiff received all the process that was due in the context of a student disciplinary investigation; that Plaintiff cannot establish that Defendant NMU discriminated against him based on his gender when it concluded that he violated the Student Code; and that Defendants are entitled to governmental immunity. (ECF No. 6.) For the following reasons, the Court will grant in part and deny in part Defendants' motion to dismiss.

         I. Background

         The allegations in the Complaint, which the Court must accept as true, are as follows: Plaintiff first met Roe in September 2016 when they both started working in a cafeteria on campus. The first day they met they started talking at work, continued talking after work, and eventually engaged in consensual sex that night. From that time until late October 2016, Plaintiff and Roe engaged in consensual sexual activity once or twice a week.

         On October 30, 2016, Roe attended a pre-Halloween party without Plaintiff. When she was ready to leave the party, she texted Plaintiff to meet her at the party and walk her home. Plaintiff went to the party and walked Roe back to his dorm room. Roe did not seem drunk to Plaintiff; she was not slurring her words; and she could walk on her own. Plaintiff did not witness Roe consume alcohol or provide her with alcohol that night. When Plaintiff and Roe returned to Plaintiff's room, they engaged in oral and vaginal sex. Roe actively participated and at no point told Plaintiff “no” or to stop. Plaintiff asked Roe if he could take a video of Roe performing fellatio on him, and Roe agreed on the condition that Plaintiff not publicly post the video. So, Roe voluntarily performed fellatio on Doe knowing that it was being videoed. At all times during the sexual encounter, Roe was awake, coherent, alert, and fully functional, and even initiated the oral sex with Plaintiff.

         After that night, Plaintiff and Roe continued communicating with each other via text message, having text conversations once to twice a month. At some point, Roe came to Plaintiff's room and told him that she had not wanted to have sex with him on October 30, 2016, and was too drunk to say anything. Plaintiff recalled the events differently but apologized. The two agreed to remain friends and laughed about the incident. They continued having text conversations after this conversation. During one text conversation, Roe asked Plaintiff to delete the video he had taken of Roe performing fellatio, and Plaintiff complied. Roe again confronted Plaintiff about what happened on October 30, 2016, via text message. In that text conversation, Roe admitted that Plaintiff had told her that he was unaware that she was drunk that night. Roe also stated that she saw Plaintiff as a friend.

         During the summer or fall of 2017, Plaintiff invited Roe to see his new off-campus housing. Roe came over and, after talking for a couple of hours, Roe and Plaintiff again engaged in consensual sex. Plaintiff texted Roe two to three times over the following month or two, but Roe did not respond.

         More than a year after the October 30, 2016, incident, on March 16, 2018, Roe initiated a formal investigation by NMU into the October 30, 2016, incident. Specifically, she alleged that, without her consent, Plaintiff undressed her, forced her to perform oral sex on him, and had penile/vaginal intercourse with her.

         Associate Dean of Students Mary Brundage presented Plaintiff with the allegations against him. Plaintiff was shocked because he thought that he and Roe were still friends, they had engaged in consensual sexual activity after October 30, 2016, and he had not even attempted to contact Roe since December 2017 or January 2018. Brundage presented Plaintiff with a document giving him the option to affirm, deny, or state “no comment” for each allegation against him:

a. Undressed her without her consent;
b. Forced her to perform oral sex on him, knowing or that he should have known that she could not consent due to her level of intoxication; and
c. Had penile/vaginal intercourse with her without her consent, knowing or that he should have known that she could not consent due to her level of intoxication.

(Complaint ¶ 64, ECF No. 1 at PageID.10.)

         Ms. Brundage also informed Plaintiff that his punishment could range from a verbal warning to expulsion. Plaintiff affirmed the first and third allegations but denied the second allegation of forcing Roe to perform oral sex on him. (Id. ¶ 81, PageID.16.) Plaintiff thought that affirming the allegations would lead to a lesser punishment and that, once he explained his side of the story, he may not receive any punishment at all. During the exchange between Plaintiff and Ms. Brundage, Plaintiff attempted to tell Brundage his version of events, but she interrupted Plaintiff and told him that he would be able to tell his side of the story to the investigator at a later time.

         On March 19, 2018, Defendant Beauchaine, who was assigned as the investigator, interviewed Roe. Roe stated that on October 30, 2016, she was drinking vodka screwdrivers and Smirnoff Ice but could not recall how much she drank. She contacted Plaintiff to come and get her. She recalled going to Plaintiff's room and going to the futon.

         According to Plaintiff, the remainder of Roe's statement contained several inconsistencies:

• Roe alleged that she told Plaintiff that she did not want to do anything, but she also claimed that she was unable to move, form words, or talk.
• She stated that she did not recall having oral or penetrative sex with Plaintiff, but she also alleged that she never gave Plaintiff permission for either act and recalled Plaintiff being on and in her.
• She claimed that she did not recall being naked until she ran to the bathroom to pee, but she later stated that she “stumbled” to the bathroom naked to pee and could not recall if that was before, during, or after the assault.
• She alleged that she did not know about the video of her performing oral sex on Plaintiff until almost a year later when Plaintiff informed her that he had it. She claimed that the video showed that her eyes were glazed over.
• She admitted to staying in touch with Plaintiff after the alleged assault and that they had been physically intimate on one occasion after the incident.

         On March 21, 2018, Plaintiff met with Defendant Beauchaine for his interview. Defendant Beauchaine again presented Plaintiff with the charges against him. Plaintiff explained his actions on the night of October 30, 2016, as described above. According to Plaintiff, his interview testimony was inconsistent with his prior affirmation of two of the allegations against him. Defendant Beauchaine did not ask Plaintiff why he had affirmed two of the allegations against him if he disputed that Roe was too drunk to consent and claimed that Roe had actively participated in the sexual activity. Plaintiff alleges that Defendant Beauchaine was hostile throughout the interview, used a very aggressive tone, and used language suggesting that she presumed his guilt.

         On March 28, 2018, Plaintiff met with the Title IX Coordinator, Defendant Koski, to review the investigator's draft report, which contained Roe's statement, Plaintiff's statement, and text messages between Plaintiff and Roe. The text messages included a conversation regarding the October 30, 2016, incident, in which Plaintiff denied knowing that Roe was drunk that night, Roe admitted to still thinking of Plaintiff as a friend, and Plaintiff stated that Roe came on to him and that Roe did not tell him “no.” Defendant Koski instructed Plaintiff to comment on any errors in the report. Two days later, Roe reviewed the draft report. She commented that she recalled bits and pieces of vaginal intercourse and peed afterward to avoid a urinary tract infection.

         Plaintiff was not given the opportunity to respond to Roe's statement; he could only review it and comment on the accuracy of his own statement. He was not given a live hearing. He was not given an opportunity to question Roe or present witnesses. Defendant Beauchaine interviewed no witness other than Plaintiff and Roe.

         On April 2, 2018, Defendant Beauchaine finalized her report. On April 6, 2018, Defendant Koski informed Plaintiff that the Sexual Misconduct Review Board (SMRB) had met the previous day to review the final investigation report. Based on a preponderance of the evidence standard, the SMRB determined that there was insufficient evidence to indicate use of force related to Roe performing oral sex on Plaintiff. The SMRB, however, found that Plaintiff had affirmed the other two charges, and based on those ...

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