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Haidak v. University of Massachusetts at Amherst

United States District Court, D. Massachusetts

March 9, 2018

JAMES HAIDAK, Plaintiff,




         Plaintiff has been expelled from the University of Massachusetts following an incident in which he was found to have assaulted a fellow student. On the heels of this, he has filed a two-count complaint against five Defendants: the University of Massachusetts at Amherst; Enku Gelaye, Dean of Students and acting Vice Chancellor; David C. Vaillancourt, Senior Associate Dean of Students; Allison Berger, Associate Dean of Students; and Patricia Cardoso, Associate Dean of Students. The first count asserts due process and equal protection claims against all Defendants pursuant to 42 U.S.C. § 1983; the second count charges Defendant University with a violation of Title IX, 20 U.S.C. § 1681. Both parties have now moved for summary judgment. For the reasons set forth below, the court will allow Defendants' motion and deny Plaintiff's.

         Cases in which a student, usually male, has received discipline for allegedly assaultive or harassing behavior against another, usually female, student can raise difficult questions about the proper balance between the due process rights of the accused and the need to protect the alleged victim. See, e.g., Doe v. Brandeis Univ., 177 F.Supp.3d 561 (D. Mass. 2016) (Saylor, J.).

         This is not such a case. Prior to the incident that led to his expulsion, Plaintiff had already been cautioned and disciplined twice for drunken, assaultive behavior; in one instance this prior conduct had led to his arrest by the police. While the complaint underlying this lawsuit was pending against him in the University disciplinary process, Plaintiff was warned three times, orally and in writing, to refrain from contact with the female complainant. Nevertheless, with full knowledge of this directive, Plaintiff ignored it to an astounding degree, texting the victim 1700 times and telephoning her over 300 times over a five-week period. In addition to this, Plaintiff met with the complainant during the prohibition period for multiple sexual trysts, called her for help when he was so intoxicated that he eventually needed temporary hospitalization, and made an appearance at a bar where the complainant worked that turned so menacing that security personnel made him leave. Plaintiff's justification for his almost mind-boggling contumacy, offered at his deposition, was that these contacts were “consensual” on the part of the complainant and that “the school could not supercede her right as a consenting adult to have conversations with someone she wanted to.” (Haidak Dep. 133:4-8, Dkt. No. 123, Attach. 2.)

         This attempted rationalization will not wash. The no-contact orders could not have been clearer; they countenanced no exceptions for what Plaintiff viewed as “consensual.” Despite these warnings, and with a history of serious assaultive misconduct, Plaintiff blew through the University's attempts to exercise even minimal control over him. The sad truth is that, if Plaintiff had simply respected the no-contact orders, covering only a few months, he would almost certainly have graduated years ago.

         Plaintiff has been well represented. Despite counsel's Olympian efforts, however, the starkly egregious facts cannot be explained away. A largely student panel weighed the evidence and sensibly concluded that Plaintiff was primarily responsible for the ugly underlying incident of assault, as well as for violating the University directives. The University administration, confronting a student with two previous strikes and an aggressive refusal to respect even modest limitations, concluded, equally sensibly, that the proper sanction was expulsion. The disciplinary mechanism, though not without flaws, reasonably complied with the requirements of due process and equal protection. Accordingly, as noted, the court will allow Defendants' motion for summary judgment and deny Plaintiff's cross motion.


         Ordinarily, when addressing a motion for summary judgment, the court must view the facts in favor of the nonmoving party, drawing all reasonable inferences in his favor. RTR Techs., Inc. v. Helming, 707 F.3d 84, 87 (1st Cir. 2013). When facing cross motions for summary judgment, the court typically “will consider each motion separately, drawing inferences against each in turn.” Showtime Entm't, LLC v. Town of Mendon, 769 F.3d 61, 69 (1st Cir. 2014) (internal quotations omitted). In this instance, however, since Defendants' motion for summary judgment will be allowed, the facts are viewed in the light most favorable to Plaintiff. Significant points of dispute will be noted in the narrative.

         A. The University's Policies

         Defendant University provided each enrolled student with a copy of the Code of Student Conduct, and students were subject to it so long as they were enrolled in an academic course or program. The CSC relevant here covered student conduct that took place in the academic year 2012-2013, including misconduct that occurred off-campus “when the behavior distinctly and directly affect[ed] the University community.” (Code of Student Conduct I.D, Dkt. No. 119, Attach. 1 (hereafter “CSC”).)

         The CSC enumerated what actions would be considered violations of the rules for standards of conduct and scholarship. Four are relevant here: physical assault on another;[1] harassment;[2] failure to comply;[3] and endangering behavior.[4] Any student who violated these regulations could be subject to disciplinary action by the University. Any student, faculty or staff member -- or the University itself -- could file a charge against a student for violation of the CSC.[5]

         Once a charge had been filed against a student, that student was to receive a Notice of Charge, outlining the violations he or she was accused of committing. The student had 48 hours to request a Disciplinary Conference to discuss the alleged violations. The CSC contained procedures for the handling of technical infractions and “minor violations, ” as well as for repeated violations and more serious infractions.

         The process for handling repeated violations and serious infractions could unfold in different ways, depending on the response of the accused student. If a student did not respond to the Notice of Charge, the case would go before the Hearing Board, in a process that is described below. If the student did respond to the charge and accepted responsibility for the charge at the initial Discipline Conference, and agreed to specific sanctions for that behavior, then an Administrative Agreement would be signed by the student and the staff member. Signing the Administrative Agreement indicated that the student accepted the sanction and waived his or her right to a hearing or to an appeal. This avenue meant that the Hearing Board was never convened.

         Notably, if the Notice of Charge for violation of the CSC involved a more serious class of violation, such as allegations of violence or a severe act of harassment, and the University official had a reason to believe, using his or her professional judgment, that the accused student was a threat to himself or herself, to others, or to property, the official could impose an interim restriction. An interim restriction could be a suspension, a restriction of access to certain campus facilities, or a prohibition from contacting certain individuals or groups within the community. Interim restrictions could be imposed without prior notice and became effective immediately.[6]

         A deliberate violation of an interim restriction could, of course, become the basis for another Notice of Charge. If the University official had grounds to believe that a student was violating a restriction, the official could request an expedited hearing to address the concern. In some circumstances, a violation of an interim restriction could be the basis for suspension from the University.

         If the student disputed the facts in the Notice of Charge, the matter would be referred to a Hearing Board. Generally, a student was to be notified no fewer than five days before the date of a hearing of its time and place. If, though, the charge involved a violation of an interim restriction, a hearing could be called within one weekday. In either case, the notice of the hearing would also include the specific charge against the student, as well as a citation of the provision of the Code of Student Conduct the charge related to. In addition, the notice would provide a summary of the information underlying the charge, including a description of the alleged acts and specific times and places if they were known or reasonably knowable. Finally, the notice would outline the procedures to be followed during the hearing.

         Hearings on violations of the CSC took place before a Hearing Board, which comprised between three and five University employees and students appointed by the Vice Chancellor for Student Affairs. The University bore the burden of proving that a student had violated the CSC by a preponderance of the evidence. The charged student could bring an advocate to the hearing, but that advocate could not be an attorney, per the CSC.[7] The Hearing Board could hear testimony of witnesses or read statements, but the formal rules of evidence as observed in court proceedings did not apply.

         At the conclusion of the hearing, the board was to make a recommendation and forward it to the Dean of Students, along with a written summary of testimony, findings of fact, and rationale. Upon receipt of these documents, the designated University Official would render a written decision on the matter, “consisting of findings of fact, sanction(s), and reasons therefore.” (CSC IV.E.11.) This would then be forwarded to the charged student.

         The determination of an appropriate sanction could be based, among other factors, on “the student's present demeanor and past disciplinary record [and] the nature of the offense.” (CSC V.) Sanctions included expulsion, suspension, deferred suspension, and University probation or reprimand, among others.

         A student could appeal the Hearing Board's substantive decision or the resulting sanction to the University Appeals Board (UAB), composed of three University employees and/or students. There were four bases for appeal: (1) procedural error or irregularity materially affecting the decision; (2) “[n]ew evidence not previously available that would have materially affected the decision;” (3) lack of support for the decision “by substantial evidence;” or (4) lack of support for the sanction “by the charges and/or the student's disciplinary history.” (CSC VI.B.1-4.) The UAB would review the hearing records and make a recommendation to the Vice Chancellor for Student Affairs, who would then issue a final decision.

         B. Plaintiff's Disciplinary Process

         On April 16, 2013, Defendant University received a call from a student's mother, who reported that her daughter, Lauren Gibney, had been physically assaulted by Plaintiff, her boyfriend, in Barcelona, Spain, where they both were studying on a University program. Gibney then sent the University a statement detailing her account of the assault, which accused Plaintiff of grabbing her wrists and punching himself in the face with her hands, as well as pinning her down on a bed. Pursuant to the University's policies, Gibney's complaint went to the Dean of Students' Office.

         On April 17, 2013, Defendant Gelaye instructed Defendant Berger to open a student conduct case on the basis of Gibney's statement. On April 19, 2013, Berger issued to Plaintiff a Notice of Charge, pursuant to the CSC. The notice informed Plaintiff that he was charged with violating CSC 2012-13/II.B.1 (physical assault) and 2012-13/II.B.17a (endangering behavior to persons or property). Moreover, the Notice of Charge directed Plaintiff “not to have any direct or indirect contact” with Gibney, including through text messages or social networking sites, or “by having others (friends, acquaintances, family members, attorneys etc.) act on [his] behalf.”[8] (Ex. D Notice of Charge, Dkt. No. 16, Attach. 4 at 13.) Berger also directed Plaintiff to contact her office to schedule a conference on the charge.

         On May 1, 2013, Plaintiff, having returned from Barcelona, met with Berger and denied the charges against him. After their meeting, Plaintiff sent to Berger an email containing his version of the incident in Barcelona.[9]According to his version of events, Gibney was the aggressor, who hit and slapped Plaintiff in the eye and kicked him in the groin, and it was only in self defense that Plaintiff pinned her down. This email contained a photograph of alleged injuries to Plaintiff inflicted by Gibney.[10]

         Despite the no-contact order, Plaintiff resumed contact with Gibney almost immediately that May, through Skype and text messages, as well as through meetings for “intimate relations.” (Pl.'s Mem. of Law in Supp. 5, Dkt. No. 9.) On May 9, 2013, Gibney's mother discovered that Plaintiff was still contacting Gibney. When confronted, Gibney told her mother that Plaintiff was refusing to stop contacting her. Gibney did not tell her mother that these contacts had occurred, to some extent, with her complicity. Gibney's parents immediately notified Berger that Plaintiff was still in contact with their daughter. Even after this report to the Dean, Plaintiff and Gibney continued their contacts.

         On the afternoon of May 9, 2013, Berger spoke on the phone with Gibney about the phone calls and texts from Plaintiff. During this call, Gibney did not tell Berger that she had colluded in the contacts, and Berger had the impression at the end of the call that the contacts were not in any way consensual. Based on this impression, on May 28, 2013, Berger issued a second Notice of Charge to Plaintiff for violating CSC 2012-13/II.B.2 (harassment) and 2012-13/II.B.13 (failure to comply with the direction of university officials). This second notice was sent by mail to Plaintiff's home address in Maryland. Again, the second Notice of Charge contained the explicit, written directive to Plaintiff to stop all contact with Gibney. (Ex. E Notice of Charge, Dkt. No. 16, Attach. 4 at 14.)

         On June 3, 2013, Gibney and her mother met with Berger to discuss the contacts between Gibney and Plaintiff. In this meeting, they discussed whether it would be appropriate for Gibney to apply for a formal restraining order from a local state court. Gibney sent Berger an email the following day chronicling the number of calls and texts she had received from Plaintiff and stating that she had not yet decided on whether to pursue a restraining order. Gibney also provided phone records, which indicated that Plaintiff called Gibney 280 times between April 24 and May 28, 2013 (i.e., after the first, but before the second, notice of charge), and 31 times between May 28 and June 1, 2013 (i.e., after the second notice of charge). The records also confirmed over 1700 text messages from Plaintiff to Gibney during that time frame.[11] Gibney did not inform Berger that the contact was ever consensual.

         On June 17, 2013, by email Berger issued to Plaintiff a third Notice of Charge for violating CSC 2012-13/II.B.2 (harassment) and 2012-13/II.B.13 (failure to comply with the direction of university officials). Moreover, Berger imposed the interim restriction of suspension, effective immediately, based on Plaintiff's “behavior represent[ing] a direct and imminent threat to [his] safety and the safety of the University community.” (Ex. F Notice of Charge, Dkt. No. 16, Ex. 4 at 15.) The third notice informed Plaintiff of his right to a meeting because of the suspension and directed Plaintiff to contact Berger's office within two days.

         On June 19, 2013, Berger and Plaintiff, as well as Plaintiff's father, David Haidak, had a second disciplinary conference via telephone regarding both the second and third notices of charge. In this conference, Plaintiff stated that he was considering charges against Gibney for her physical assault on him in Barcelona. Berger stated that Plaintiff could submit a charge, and her office would make a determination based on the submission about how to proceed. However, Berger told Plaintiff that, even if he did file a charge against Gibney, it was unlikely that the charge would be formally addressed until after the conclusion of the disciplinary proceedings against him. In the end, Plaintiff never, at any point, filed anything against Gibney. The phone conference concluded with an agreement that Plaintiff would supply a response to the charges that he was violating the no-contact orders, and Berger would decide whether to keep the interim suspension in place.

         On July 8, 2013, Plaintiff sent his version of events in an email, including excerpts from his texts with Gibney, in an effort to show Berger that the contacts between Gibney and him were, in his view, entirely consensual and even “welcome.” This is, in part, disputed. Defendants now concede that some of the contacts and communications between Plaintiff and Gibney were consensual, but they also contend that many, in fact, were not. For purposes of Defendants' motion for summary judgment, the court will assume that the contacts between Plaintiff and Gibney during the period when Plaintiff was prohibited from contacting Gibney were consensual on Gibney's part.

         On August 5, 2013, Berger sent Plaintiff an email stating that the interim suspension imposed on June 17, 2013, would continue in effect until further notice. The email did not provide reasons as to why the interim restriction remained in place.[12] The email attached a form for withdrawal from the University, based on a conversation Berger had had the previous week with Plaintiff's father, which will be discussed below.

         It is significant that, during these summer months, Defendants took no action to schedule any proceeding before a Hearing Board. Accepting Plaintiff's argument as true that the no-contact order in the first Notice of Charge constituted an interim restriction under the CSC (VII.B), the imposition of the interim suspension based on violations of the no-contact orders appears to call for an expedited hearing under the CSC (VII.D).[13] In fact, the first attempt at recruiting new student Hearing Board members for the 2013-2014 academic year occurred on August 30, 2013. Student applications to sit on the Hearing Board were due on September 13, 2013. This timetable meant that no trained Hearing Board was in place until the end of the first month of the academic year.

         On August 21, 2013, Plaintiff sent an email to the University's Judicial Advisor program. This program pays students to act as advisors and advocate for individuals navigating the University's disciplinary process, either as complaining students or as charged students. The Judicial Advisors attend meetings with charged students at the Dean of Students Office and assist the students in preparing for hearings before the Hearing Board, as well as in writing appeals to the UAB. On August 26, 2013, Judicial Advisor Stasie Levin took the assignment of assisting Plaintiff. In this role, Levin corresponded frequently with Plaintiff about his case, including about whether he should file charges against Gibney and what evidence he could submit to the Hearing Board. Additionally, Levin had several conversations about Plaintiff's case with individual Defendants, including Berger, Cardoso, and Gelaye.

         On August 27, 2013, Plaintiff's father sent an email to Berger inquiring into whether Plaintiff could take an “elective leave of absence, ” as the new academic year was about to begin, Plaintiff was still under suspension, and no date had yet been set for the Hearing Board to convene. On August 29, 2013, Berger replied that the University had no such mechanism as an “elective leave of absence.” However, Berger informed him, Plaintiff could withdraw and later apply for readmission.

         After this exchange, on August 30, on the advice of his student judicial advisor, Plaintiff called Defendant Gelaye. During their phone conversation, Plaintiff stated to Gelaye that he believed Berger was discriminating against him with respect to the charges. He and Gelaye also once more discussed the option of Plaintiff filing a charge against Gibney based on her assault on him during the incident in Barcelona. Gelaye informed Plaintiff again that he was free to file a charge against Gibney but that his doing so would not change the status of Gibney's case against him. When Plaintiff inquired about lifting his interim suspension, Gelaye told him that this was not possible until after the proceeding before the Hearing Board.[14]

         On September 1, 2013, Plaintiff withdrew from the University -- as he put it, “under duress.” Plaintiff wrote that he was “pushed” into this decision because of the lack of a timely Hearing Board date, which meant that the complaint against him would not be addressed until several weeks into the new school year, at the earliest. (Defs.' Resp. to Pl.'s Statement of Facts ¶ 204, Dkt. No. 142.) If he remained a student but was under suspension, he would be faced with trying to catch up with classes, even if the Hearing Board's eventual decision was favorable to him and resulted in the lifting of his suspension.

         Despite no longer being a student at the University, Plaintiff moved to an apartment in Amherst in September and, in the teeth of the three no-contact orders, continued to pursue a relationship with Gibney. On the night of September 14, 2013, Plaintiff became intoxicated and called Gibney for a ride. On the trip home, they got into an argument, during which Plaintiff threatened to kill himself. Then, Plaintiff exited the car while it was still moving. Gibney called the police, who took Plaintiff to the hospital, where he remained until he had recovered from his intoxication. On September 15, 2013, Gibney's mother notified Berger of this contact.

         On September 19, 2013, Gibney and her mother met with Berger. Gibney admitted at the meeting that she had herself sometimes initiated contact with Plaintiff over the summer, but that she no longer wanted contact with Plaintiff.

         On September 26, 2013, the melodrama continued. Plaintiff showed up, appearing intoxicated, at Gibney's work place, a bar in Amherst. He was the only person at the bar, and he positioned himself uncomfortably close to Gibney. Security at the establishment removed Plaintiff after the owner asked Gibney if she wanted Plaintiff to leave. Later in the night, Plaintiff sent Gibney a coarse message on Skype: “Whores don't really understand real life... They talk to dudes with broken English but really they just spread their legs and get fucked like the sluts they are ....” (Defs.' Statement of Facts ¶ 43, Dkt. No. 123.)

         The following day, on September 27, 2013, Gibney notified Berger about the previous night's contact with Plaintiff. Any claim that Plaintiff's overtures to Gibney by this point were “welcome” or consensual lacks support in the record. With encouragement from Berger's office, Gibney filed an application for a state-court restraining order describing the incident at her workplace and the message Plaintiff wrote her. This application failed to disclose that Gibney's relationship with Plaintiff during some of the prior relevant time period had been, to some extent, consensual on her part, despite the University's no-contact order. After an ex parte hearing, a judge in the Commonwealth's Eastern Hampshire District Court granted a ten-day restraining order. Gibney provided a copy of the temporary restraining order (TRO) to Berger.

         On October 2, 2013, the student judicial advisor Levin sent Plaintiff an email. In it, she summarized a conversation she had with Berger, who told Levin, once more, that Plaintiff was free to file charges against Gibney if he wished. As before, however, Berger stated that Plaintiff's charges would not be pursued until after Gibney's charge against Plaintiff was addressed.

         On October 8, 2013, the state court judge held an adversarial hearing on Gibney's application for an extension of the ten-day restraining order. Upon cross-examination by Plaintiff's counsel, Gibney admitted that her relationship with Plaintiff had been, at times and to some extent, consensual, and that she had struck and bitten Plaintiff during the course of their approximately eighteen-month relationship. At the conclusion of the hearing, the judge declined to extend the TRO.

         On October 28, 2013, Berger notified Plaintiff and Gibney that she would no longer be the contact person for this case. In fact, Berger thereafter left the University for another position. The new official in charge of the process was Defendant Cardoso, Associate Dean of Students. In November, Plaintiff sent Cardoso two proposed pieces of evidence for consideration by the Hearing Board: a transcript of the state-court TRO hearing and a picture of the bite mark on Plaintiff's arm from around the time of the April 15, 2013, altercation in Barcelona. In addition, Plaintiff sent to Gelaye a copy of the TRO hearing transcript.

         On November 15, 2013, Plaintiff and Cardoso had several phone conversations, during which they discussed what evidence Plaintiff wished to put before the Hearing Board, as well as what dates were available for the hearing.[15] In these conferences, Cardoso expressed her opinion that Plaintiff's proposed evidence would likely hurt Plaintiff as much as, or more than, it helped him, and was, in any event, largely irrelevant to the inquiry into the April 15 assault and Plaintiff's subsequent violations of the no-contact orders.

         Cardoso also conferred with Plaintiff to choose a date for the Hearing Board to convene. She provided three different dates, and Plaintiff selected Friday, November 22, 2013, though he was aware he would not be able to attend in person on that date. Plaintiff and Gibney received notice on November 15 that the hearing had been scheduled for November 22, 2013.[16] The notice included a handout on procedures, and an agenda that specified that charged students would not be permitted to question complaining witnesses directly. This restriction was new as of the fall of 2013 and had not been in effect the prior spring.

         The following day, Plaintiff told Cardoso that he wished to have his mother make a statement at the hearing in his defense. She would recount, Plaintiff said, a conversation she had with Gibney in February 2013 in Barcelona, several months prior to the April 15 incident that formed the basis of Gibney's charge, during which Gibney purportedly admitted to biting Plaintiff. Plaintiff's mother would also explain that she saw the bruises on her son's arm from the bite. Cardoso replied that, unless Plaintiff's mother was a witness to the April 15, 2013, incident, she would not be permitted to testify. However, Cardoso explained, Plaintiff's mother could submit a letter that would be included in the file reviewed by the dean tasked with making a decision on sanctions should the Hearing Board find Plaintiff responsible for the CSC violations.

         In the days before the hearing, Gibney's parents contacted the University to object to the use of the restraining order transcript during the student conduct hearing, as well as the fact that Plaintiff's counsel would be present. Plaintiff, for his part, submitted to Cardoso thirty-six questions he wanted the Hearing Board to ask Gibney, as well as a summary of his view of the charges. Plaintiff's mother also submitted her statement to Cardoso. The day before the hearing, Cardoso notified Plaintiff that she had decided not to permit the transcript from the state court hearing to be submitted to the Hearing Board.

         The record is disputed as to whether Plaintiff acceded to Cardoso's decision regarding the transcript. Defendants contend that Plaintiff agreed not to press the transcript issue, after Cardoso pointed out that it was unnecessary since Gibney was now admitting that she had had voluntary contact with Plaintiff during the no-contact period. Other portions of the record, however, suggest that Plaintiff was continuing to press for submission of the transcript. The dispute is not material, since the court will assume for purposes of Defendants' motion that Plaintiff continued to press for submission of the transcript, and Cardoso declined to permit it.

         Cardoso limited the evidence before the Hearing Board in other ways. She did not permit the submission of Plaintiff's mother's statement or the picture of the bruise on Plaintiff's arm from February 2013. Cardoso also pared the 36 questions submitted by Plaintiff down to sixteen. These questions omitted inquiries into whether Gibney had ever hit ...

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