United States District Court, W.D. Michigan, Northern Division
OPINION GRANTING IN PART AND DENYING IN PART
DEFENDANTS' MOTION TO DISMISS
J. QUIST, UNITED STATES DISTRICT JUDGE.
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.
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).
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.
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.
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.
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
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.
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.
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.)
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.
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.
to Plaintiff, the remainder of Roe's statement contained
• 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.
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
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
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.
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 ...