United States District Court, D. Massachusetts
December 22, 2015
Jane Doe, Plaintiff: David P. Angueira, LEAD ATTORNEY, Swartz
& Swartz, Boston, MA.
Emerson College, Lee Pelton, Individually and as President of
Emerson College, Ronald Ludman, Individually and as Dean of
Emerson College, David Haden, Individually and as Director of
Housing and Residence Life, Danielle Mastronardi,
Individually and as Residence Director at Emerson College,
Kim Marcella, Individually and as Title IX Investigator,
Michael Arno, Individually and as Title IX Investigator,
Defendants: Katrina N. Chapman, Holland & Knight (B), Boston,
MA; Paul G. Lannon, Jr., Holland & Knight, LLP, Boston, MA.
AND ORDER ON DEFENDANTS' MOTION FOR JUDGMENT ON THE
Dennis Saylor IV, United States District Judge.
an action arising out of a college's investigation of an
alleged sexual assault. Plaintiff Jane Doe is a student at
Emerson College in Boston, Massachusetts. She alleges that
she was sexually assaulted off-campus, once at a party in
Cambridge and later in a Boston alleyway.
originally reported to Emerson officials and police that she
was raped by a male MIT student at an MIT fraternity party.
The complaint acknowledges that a DNA test was performed
after the alleged assault, and that the evidence did not
support her claim. The test did, however, show the presence
of female saliva. More than a month after Doe first reported
the assault, she changed her account to allege that a female
Emerson student held her down while the MIT student raped
her, and that the female student also performed oral sex on
her. Emerson investigated Doe's allegations; the
investigation concluded that there was insufficient evidence
of a sexual assault to satisfy a preponderance of the
complaint further alleges that the same two individuals later
confronted her on a Boston street and pushed her into an
alleyway, where the female grabbed at her crotch. Emerson
investigated that allegation, as well, and concluded that the
claim was not supported by a preponderance of the evidence.
complaint alleges that the defendants, Emerson and certain of
its employees, failed to promptly and appropriately
investigate the alleged assaults, subjecting Doe to a hostile
environment and effectively denying her access to educational
opportunities. The complaint names Emerson and six
employees--including the President and Dean of Students--and
includes four claims: (1) violation of Title IX of the
Educational Amendments of 1972, 20 U.S.C. § 1681,
against Emerson; (2) negligence against all defendants; (3)
negligent infliction of emotional distress against all
defendants; and (4) intentional infliction of emotional
distress against Emerson and four employees. The Court
previously denied Emerson's motion for judgment on the
pleadings as to the Title IX claim (Count One). The Court
also previously granted Emerson President Lee Pelton's
motion for judgment on the pleadings because the complaint
did not include any specific allegations against him.
before the Court is defendants' motion for judgment on
the pleadings as to Doe's state-law claims (Counts Two
through Four). For the reasons that follow, the motion will
facts are drawn predominantly from the complaint, and also
occasionally from the answer to provide context. See
R.G. Fin. Corp. v. Vergara-Nunez, 446 F.3d 178, 182
(1st Cir. 2006) (answer and other documents fairly
incorporated in the pleadings may be considered for Rule
College is a private college in Boston, Massachusetts.
(Compl. ¶ 2). Jane Doe is a resident of Washington, D.C. and
a student at Emerson. ( Id. at ¶¶ 1, 96). She
enrolled at Emerson as a first-year student beginning with
the fall 2012 semester. ( Id. at ¶ 17).
Pelton is the President of Emerson. ( Id. at ¶ 3).
Ronald Ludman is the Dean of Students. ( Id. at ¶
4). David Haden is the former Associate Dean and Director of
the Office of Housing and Residence Life. ( Id. at ¶
5). Danielle Mastronardi is a former Resident Director. (
Id. at ¶ 6). Kim Marcella is the Director of
Employment and Employee Relations. ( Id. at ¶ 7).
Michael Arno is the Director of Student Conduct. (
Id. at ¶ 8).
The Alleged Rape
October 13, 2012, Doe and several other Emerson students,
including a female student (" Student A" ), left
campus to attend an off-campus party in Cambridge. (
Id. at ¶ 22). The party was at a fraternity at the
Massachusetts Institute of Technology. ( Id. ). The
complaint alleges that Student A had served Doe an alcoholic
drink before the party that contained an unknown drug. (
Id. at ¶ 20).
to the complaint, while at the party, Doe was lured into a
room by an MIT fraternity member who slammed her head against
the wall and raped her. ( Id. at ¶¶ 25-27).
she returned to her dorm later that night, Doe told a friend
that she was sexually assaulted by an MIT student at an
off-campus party. ( Id. at ¶ 29). Doe's friend
contacted an Emerson Resident Assistant. ( Id. at ¶
30). The RA immediately went to Doe's room, spoke to her,
explained to her that she had the option to file a report
with the Emerson Police Department, and offered to accompany
her to the police and call a counselor. ( Id. at ¶¶
chose not to report the assault that night to the police. (
Id. at ¶ 32). The RA explained to Doe that she would
not disclose her account of the assault, except to share it
with the on-duty Residence Director in order to ensure that
Doe received the assistance she needed. ( Id. at ¶
next day, Residence Director Mastronardi visited Doe and
offered her resource materials for victims of sexual assault.
( Id. at ¶ 33). The complaint alleges that
Mastronardi asked Doe in " a condescending and
disrespectful way" whether she was sure that she had
been raped. ( Id. at ¶ 36). She also failed to hide
the sexual-assault resource materials from Doe's
roommate. ( Id. at ¶¶ 34-36). Mastronardi left the
materials with Doe. ( Id. at ¶ 37). According to the
complaint, those materials did not provide information on
Doe's rights under Title IX. ( Id. ).
consulting a friend later that day, Doe decided to report the
assault to the Emerson police. ( Id. at ¶ 39). The
RA accompanied Doe to the Emerson Police office, where she
reported the assault. ( Id. at ¶ 40). The Emerson
police explained that they did not have the power to
investigate a sexual assault by a non-Emerson student at an
off-campus location. ( Id. at ¶¶ 43-44). The Emerson
police contacted the Boston Police Department, who concluded
that the Cambridge Police Department had jurisdiction. (
The Initial Police Investigation
October 15, 2012, Doe went to Tufts Medical Center, where she
received a rape kit. ( Id. at ¶ 45). Later that day,
Doe searched online for the name of the fraternity house
where she was assaulted. ( Id. at ¶ 46). According
to the complaint, she looked at pictures of its members and
recognized one of the fraternity members as her assailant,
and notified her RA. ( Id. at ¶¶ 46-47). The RA
notified the Cambridge police that Doe was able to identify
her assailant and e-mailed the fraternity's webpage to
the detective investigating the matter. ( Id. at ¶
days later, Cambridge police interviewed Doe and other
Emerson students who attended the party, including Student A.
( Id. at ¶ 49).
a November 15 meeting with Cambridge and MIT police, the
officers told Doe that the lab results from her rape kit
showed no DNA evidence to support her claim that a male MIT
student sexually assaulted her. ( Id. at ¶ 50). The
officers also told her, however, that the results showed
traces of a female's saliva. ( Id. ).
to the complaint, fifteen minutes after the officers left the
meeting, Doe " started having an anxiety attack mixed
with flashbacks of that night." ( Id. at ¶ 51).
For the first time, she recalled that Student A was present
in the room while she was assaulted. ( Id. ). Doe
now remembered that Student A performed oral sex on her and
held her down while the MIT student raped her. ( Id.
). The complaint alleges that Doe did not recall Student
A's involvement before November 15 because she had been
drugged by Student A and because her assailant had slammed
her head against the wall. ( Id. at ¶ 27). At ...