United States District Court, D. Massachusetts
MEMORANDUM AND ORDER REGARDING REPORT AND
RECOMMENDATION RE; DEFENDANTS' MOTION TO DISMISS (Dkt.
Nos. 30 & 54)
MICHAEL A. PONSOR U.S. District Judge
a former student at Defendant Western New England University
("WNEU")-- proceeding under the pseudonym John Doe
-- has filed a twelve-count complaint against WNEU and eight
university employees, seeking damages and equitable relief in
connection with his two-year suspension for sexual
response, Defendants have filed a Motion to Dismiss the
complaint in its entirety. (Dkt. No. 30). The motion was
referred to Magistrate Judge Katherine A. Robertson for a
Report and Recommendation.
Robertson's Report and Recommendation (Dkt. No. 54)
advises that Defendants' motion to dismiss should be
allowed, except as to three elements of the complaint: a
portion of Count I, which generally alleges breach of
contract; a portion of Count II, which generally alleges a
breach of the covenant of good faith and fair dealing; and
misnumbered Count XIII, which seeks declaratory relief. In
all other respects, including the bulk of the claims offered
under Count I and Count II, the Report suggests that the
motion to dismiss should be allowed.
Plaintiff and Defendants have filed objections to the Report
and Recommendation in accordance with the timetable set forth
in the Magistrate Judge's memorandum. For the reasons set
forth below, these objections are unpersuasive. As a result,
on de novo review, the court will adopt the Report
and Recommendation and allow the motion to dismiss the
complaint, in part.
not necessary to repeat the essential facts; they are
scrupulously recited in the Report and Recommendation and,
for purposes of the motion to dismiss, largely undisputed.
The Report and Recommendation is attached for reference.
does not protest the Report's recommendation that most of
his claims be dismissed. He objects only to dismissal of two
counts: Count VII, which seeks damages for common law
intentional infliction of emotional distress; and Count XI,
which seeks damages for violation of Title IX. Though
vigorously asserted, neither of these objections has
regard to Count VII, the Report correctly concludes that,
even accepting all the allegations of the complaint,
Defendants' behavior would not, as a matter of law, rise
to the level of outrageousness necessary to support a claim
for intentional infliction of emotional distress. This
conclusion is well supported, both by general authorities
detailing the standards for a claim of this sort, and by
specific cases involving precisely the disciplinary context
the parties confront here. (Dkt. No. 54 at 43-44.)
arguments in support of his objection to the dismissal of
Count XI are similarly unavailing. Title IX of the Education
Amendments of 1972, 20 U.S.C. §§ 1681-88, is a
federal statute barring gender-based discrimination in
federally supported educational institutions. As the Report
points out, a claim may be offered pursuant to Title IX only
where non-speculative evidence exists of discrimination based
on sex. See, e.g., Yusuf v. Vassar
Coll., 35 F.3d 709, 715 (2d Cir. 1994). Here, the
complaint offers no sufficient evidence -- indeed, no
evidence of any kind beyond conjecture -- supporting a claim
that discrimination on the basis of gender was a motivating
factor in Defendants' decision to suspend Plaintiff. As
the Report and Recommendation notes, numerous courts have
dismissed claims for violation of Title IX in the face of
allegations substantially identical to those offered here.
(Dkt. No. 54 at 44-52.) Analogous cases denying motions to
dismiss Title IX claims cite far more compelling facts.
objections to the Report and Recommendation similarly fall
short, but require more discussion. A summary of the facts
that are undisputed at this stage is necessary to make the
basis for the court's ruling clear.
triggering incident, a sexual encounter between Plaintiff
Doe, a male, and a female fellow student --referred to in
this litigation as Loe -- occurred on the night, and during
the early morning hours, of September 26-27, 2014. At that
time, the only applicable standards governing claims of
sexual misconduct by a student were set forth in the Student
Code of Conduct contained in WNEU's 2014-2015 Handbook.
Sexual misconduct was defined in the Handbook as "any
form of physical contact or exploitation of another person of
a sexual nature that is made without effective consent."
(Dkt. No. 54 at 18.) Consent is effective when "a person
is able to make free, informed, and reasonable choices and
decisions -- and is not impaired by intoxication or other
drug consumption . . . by disability, or by fear."
(Id. at 19.) The Handbook states, in bold type, that
consent is effective "when it has been clearly
communicated. Consent may never occur if a person is
unconscious, unaware, or otherwise physically helpless."
undeveloped facts that led -- nine months after the incident
-- to the charges of misconduct against Plaintiff may be
summarized crudely as follows. The word "crudely"
is used in both senses. It is distasteful to have to get into
these details but unfortunately necessary.
Loe met at a party. They consumed some alcohol, but not
enough to be impaired. They went to Doe's room,
ostensibly to watch a movie. They began kissing. By mutual
consent, they both removed all their clothing. Loe said she
did not want to have penile-vaginal intercourse, and Doe
respected this. By mutual consent, they began performing oral
sex on each other. At some point, Loe said she did not want
to continue this, and Doe stopped. At this point, Doe's
and Loe's versions of what happened appear to diverge
slightly. According to Doe, he asked Loe to "finish him
off" so that he would not be left with "blue
balls." She then masturbated him to ejaculation.
(Id. at 5.) According to Loe, Doe said, "Now
you have to finish me off, " placed her hand on his
penis, and held it there until he ejaculated. (Id.)
It is undisputed that Loe never explicitly voiced any
disinclination to masturbate Doe or tried to pull her hand
on this incident, Defendants eventually informed Plaintiff
that he was being charged with two violations of Article
III-A of the 2014-2015 Handbook's Student Code of
Conduct. Plaintiff ...