United States District Court, D. Massachusetts
ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
(DOC. NO. 101) AND MOTION TO STRIKE (DOC. NO. 116)
SOROKIN UNITED STATES DISTRICT JUDGE.
Doherty sued Emerson College and Michael Arno, individually
and as Emerson's Title IX investigator, asserting four
claims: violation of Title IX against Emerson; and
negligence, negligent infliction of emotional distress, and
intentional infliction of emotional distress against Emerson
and Arno. Doc. No. 39. The claims arise from Emerson's
response to a report by Doherty that she had been sexually
assaulted on campus by another student. Defendants have moved
for summary judgment on all counts, Doc. No. 101, Doherty has
opposed, Doc. No. 111, and Defendants have replied, Doc. No.
115. The Court held a motion hearing on September 19, 2017.
Doc. No. 123. For the reasons stated below, the Motion for
Summary Judgment is ALLOWED. Defendants' Motion to
Strike, Doc. No. 116, is DENIED AS MOOT.
Court describes the undisputed facts established by the
record evidence and draws all reasonable inferences in
Doherty's favor. When material facts are in dispute, the
Court accepts Doherty's facts.
Doherty's Report and Emerson's Initial
entered Emerson College as a freshman in the fall of 2011.
Doc. No. 103-2 at 4. She attended Emerson's orientation
and received a copy of the student handbook. Id. at
5. The student handbook included information on Emerson's
sexual assault policies, including safety measures, reporting
violations, and the student disciplinary process; it also
contained Emerson's alcohol policy. Doc. No. 103-6 at
completed her freshman year and went home for the summer.
Doc. No. 103-2 at 14. She spent the fall semester of her
sophomore year studying abroad as part of an Emerson program.
Id. at 15. She returned to Emerson's campus for
the spring semester. Id. at 15.
AM on March 2, 2013, Doherty sent an e-mail to Robert Ludman,
Dean of Students; Lee Pelton, President of the College; and
Sharon Duffy, Associate Dean of Students, the relevant
portions of which follow:
It May Concern:
It has come to my attention that Emerson College has not
taken significant action to protect the students of the
Emerson Community. . . . I, as a member of the Emerson
Community, demand that you and the college take immediate
action to protect the students of this community. . . .
Also, I, too, have been raped on campus. I didn't say
anything because I was too afraid, but the fact still stands
that the statistics on rape and sexual assault at Emerson
College are grotesque and severe. Please help us stop this.
Thank you for your time,
Doc. No. 103-10 at 2. Doherty's e-mail was the first
report she made to Emerson about the sexual assault. Doc. No.
103-2 at 18. Ludman responded at 11:04 AM the same day, about
ten hours after Doherty's e-mail, offering support and
advising Doherty of Emerson's resources that were
available to her, including the Counseling Center, Center for
Health and Wellness, and Campus Police. Doc. No. 103-10 at 2.
Additionally, Ludman forwarded Doherty's e-mail to
several administrators, including Arno and Alexa Jackson,
Associate Vice President of Human Resources and Title IX
Coordinator. Id. Jackson responded within a few
hours to set up a meeting among the administrators to discuss
Emerson's response to Doherty's e-mail. Doc. No.
103-11 at 2.
Arno was designated by Emerson to investigate Doherty's
report. On March 5, 2013, he e-mailed Doherty:
I hope this email finds you well. My name is Mike Arno and I
work in the conduct office. I am contacting you today because
Dean Ludman informed me that you reported being sexually
assaulted on campus. I'm so sorry to hear that you had to
experience this awful event.
Given the nature of the information you shared, I would like
to invite you to meet with me. I would like to meet just to
make sure you are doing ok and to make sure you are aware of
the services at Emerson that can support you. It would be
great if you could propose a time that is convenient for you
to meet with me after you return from break. If you are
around this week and would like to meet that would be great
It is important to me and the College that we touch base,
even if you wish not to share any details of your experience.
I look forward to hearing from you.
Doc. No. 103-12 at 2. Doherty responded the next day,
stating: “Thank you for reaching out to me. It means a
lot that the Emerson community and faculty are being so
supportive and responsive.” Id. She noted her
availability, and Arno responded to schedule a meeting for
the following week, on the first Monday after the school
March 11, 2013, Doherty and Arno met in Arno's office.
Arno explained to Doherty that, while she was encouraged to
share the name of the assailant,  she was not required to do
so. Doc. No. 103-2 at 20. Doherty shared the assailant's
name with Arno, but said she did not want to pursue criminal
charges or school conduct charges against him. Id.;
Doc. No. 103-13 at 2. Doherty stated she did not feel
threatened by the assailant. Doc. No. 103-13 at 2. She noted
he was on a semester abroad and asked that Emerson meet with
him before he returned to campus. Id. Arno reminded
Doherty of the resources available to her at Emerson. Doc.
No. 103-2 at 20.
same day, Arno sent Doherty an e-mail summarizing their
meeting and asking her to confirm that the summary was
accurate. Doc. No. 112 at 13. She responded with two
clarifications-the spelling of a witness's name and an
additional detail-and confirmed that the meeting notes were
otherwise accurate. Id. at 13-14; Doc. No. 103-2 at
21. Arno confirmed with Doherty that she did not feel
threatened by the assailant at that time and that she was
comfortable with the assailant having guest access to her
dorm. Doc. No. 103-2 at 21. He also informed her that Emerson
would begin a Title IX investigation, id., and that
a Stay Away Directive would be put in place between Doherty
and the assailant, Doc. No. 112 at 15. Arno forwarded his
meeting summary to Ludman and Jackson. Id.
Emerson's Title IX Investigation
March 26, 2013, Arno met with Doherty to update her on the
status of the Title IX investigation. Doc. No. 103-2 at 22.
He confirmed that Doherty was willing to cooperate in the
investigation and explained Emerson's student conduct
disciplinary process. Doc. No. 112 at 15. He verified that
Doherty felt safe on campus at that point and that she
believed she would feel safe when the assailant returned to
next day, Doherty sent Arno two Facebook conversations, the
first from April 16, 2012, in which the assailant invited
Doherty to his room,  and the second from April 26, 2012, in
which Doherty confronted the assailant. Doc. No. 103-7.
Doherty told Arno that one of the assailant's roommates
had seen her and the assailant after the incident, but that
she could not remember the witness's name. Doc. No. 112
at 16. Arno e-mailed Doherty to set up a time to look at
photographs of the assailant's roommates at the time to
identify the witness; she subsequently reviewed the photos
and identified the individual she recalled seeing.
Id.; Doc. No. 103-2 at 23.
April 12, 2013, Arno e-mailed Doherty to update her on the
investigation and confirm that he would interview the
individual she had identified. Doc. No. 112 at 16. He
notified her of the date on which he planned to inform the
assailant of Doherty's report and the pending
investigation, and said he would meet with the assailant when
he returned to Boston the following week. Id.
contacted the assailant on April 15, 2013, informing him that
a report had been made about his conduct and asking to meet
when he returned to Boston. Id. The assailant
responded that he would be in Boston for only one day, on
April 17, 2013. Id. On that date, Arno met with the
assailant and gave him a copy of the Stay Away Directive,
which prohibited the assailant from communicating with
Doherty and barred him from entering Doherty's residence
hall. Id. at 17. Arno also sent Doherty a Stay Away
Directive. Id. The assailant left campus for the
semester after meeting with Arno. Id.
April 19, 2013, Arno e-mailed Doherty to tell her he had met
with the assailant, that they had a “positive”
conversation, and that the assailant had left campus for the
semester. Doc. No. 103-22 at 2. Arno wrote a summary of his
investigation and shared it with Ludman and Jackson. Doc. No.
112 at 17. Arno questioned the veracity of Doherty's
account of the events because Doherty's own witnesses,
according to Arno, did not seem to support her account,
and, although the assailant did not deny the event, he
claimed not to remember it. Doc. No. 103-24 at 2. Arno
ultimately determined, after consulting Jackson, that a
conduct hearing was warranted. Doc. No. 112 at 17-18.
The First Conduct Board Hearing
April 24, 2013, Arno e-mailed Doherty to inform her that
Emerson had decided to move forward with a conduct board
hearing. Id. at 18. He told her the hearing would be
scheduled after finals, at the start of May. Id. The
same day, Doherty called Arno and said she had incorrectly
identified which one of the assailant's roommates had
seen her and the assailant after the incident. Id.
Doherty identified a different roommate as the witness, and
Arno interviewed that person. Id.
following day, Doherty contacted Arno to identify her friend
as another witness, identified for purposes of the
investigation as Witness 5. Id. at 19. Arno tried
once to contact Witness 5 to request a meeting, but Witness 5
did not respond. Id. Doherty later asked Witness 5
to reply to Arno. Id.
April 29, 2013, Arno sent Doherty a summary report of the
meetings the two had about the incident and asked her to
confirm the document was accurate. Id. at 19.
Doherty sent no corrections. Id. The next day, Arno
met with Doherty to discuss setting a hearing date.
Id. He allowed her to choose between a Skype hearing
over the summer or an in-person hearing in the fall.
Id. Doherty said she preferred a Skype hearing.
Id. Shortly after her finals, Doherty flew home to
California. Id. at 20.
2, 2013, Arno wrote to Doherty offering dates for the
hearing. Id. On May 10, 2013, he sent her an e-mail
confirming the planned date of May 17, 2013, and attaching
information about the conduct board hearing. Id. The
attachments notified Doherty that the hearing would proceed
according to the Special Conduct Board Procedures for Sexual
Misconduct and Sexual Harassment Complaints. Id. The
attachments also explained Doherty could notify Emerson if
she did not wish to participate in the hearing; Doherty
informed Arno that she wanted to participate. Id.
The three members of the Conduct Board were identified in the
attachments, which informed Doherty she could object to the
designated members. Id. Doherty raised no
attached a copy of his Title IX investigation report to his
May 2, 2013 e-mail, id. at 22, along with a letter
from David Haden, the Associate Dean and Director of Housing
and Residence Life, id. at 21. Haden's letter
informed Doherty that she could have an advisor, including an
attorney, work with her before the hearing and attend the
hearing with her. Id. Doherty chose not to have an
advisor present for the hearing. Id. Haden's
letter also advised Doherty that she should provide the names
of any additional witnesses she wished to present at the
hearing. Id. Doherty provided no other names.
Id. Haden encouraged Doherty to meet with him before
the hearing if she had any questions. Id.
13, 2013, Arno e-mailed Doherty to confirm that, during the
hearing, Doherty would communicate with the assailant through
the Board Chair, and to explain that Doherty could write down
any questions she had for the assailant, and the Board Chair
would read them aloud. Id. at 23. Arno confirmed
that Doherty was comfortable with that procedure.
15, Witness 5 contacted Arno to provide her witness account.
Id. Arno interviewed Witness 5 and, on May 16, sent
Doherty and the assailant an updated Title IX investigation
report that included a summary of the new interview.
Conduct Board hearing was held on May 17, 2013. Id.
at 24. Doherty participated by Skype from California.
Id. She did not request any disability
accommodations for the hearing. Id. at 25. The Board
consisted of three members, David Griffin, Seth Grue, and
Tikesha Morgan. Id. at 24. All three were Emerson
Administrators who had participated in previous student
conduct board hearings, including some involving allegations
of sexual harassment or sexual discrimination. Id.
at 24. Morgan was a trained Title IX investigator,
id., although Doherty disputes whether her training
was adequate, id. at 25. Griffin served as the
chair. Id. at 26.
the hearing, the Board received a copy of Arno's
investigation report, including an update after his interview
with Witness 5. Id. Arno sent Griffin a script to
follow at the hearing, based on Emerson's Special Conduct
Board Procedures for Sexual Misconduct and Sexual Harassment
Complaints. Id. at 26.
and the assailant signed confidentiality statements and
presented facts supporting their positions. Id.
During the hearing, the Board read a statement from a female
student that included a personal reference for the assailant;
Doherty interpreted the statement as a personal attack on
her. Id. at 26-27. Arno summarized his investigation
report during the hearing without providing his opinion on
whether the assailant was responsible for a policy violation.
Id. at 28. The hearing lasted approximately one
hour. Id. Doherty and the assailant each were given
the option to submit a final statement in writing after the
hearing, or to deliver a final statement orally. Id.
Doherty chose to make an oral statement. Id.
The First Decision and ...