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Roe v. Northeastern University

Superior Court of Massachusetts, Suffolk

March 8, 2019

Morgan ROE, Plaintiff
NORTHEASTERN UNIVERSITY, Katherine Antonucci, Robert Jose, Briana R. Sevigny, Mary Wegmann & Madeleine Estabrook, Defendants


          Robert B. Gordon, Justice of the Superior Court

          Plaintiff Morgan Roe (the "Plaintiff")[1] alleges that, while she was a student at Northeastern University ("NU" or the "University"), she was sexually assaulted by another student in that student’s dormitory room. Plaintiff brings against action against NU and several of its employees, Katherine Antonucci, Robert Jose, Briana R. Sevigny, Mary Wegmann, and Madeleine Estabrook (collectively, the "Defendants"), alleging that they failed to protect her against the assault and inadequately handled her ensuing complaint. Plaintiff asserts claims for negligence, negligent infliction of emotional distress, and violation of the Massachusetts Equal Rights Act (the "MERA") against all Defendants, as well as claims for breach of contract and violation of Title IX of the Educational Amendments of 1972, 20 U.S.C. § § 1681 et seq. ("Title IX") against NU.[2] Presented for decision is the Defendants’ Motion for Summary Judgment. Following a hearing and for the reasons which follow, the Defendants’ motion shall be ALLOWED .


         The following facts are taken from the summary judgment record and the statement of undisputed material facts filed jointly by the parties under Superior Court Rule 9A(b)(5). The Court reserves further recitation of the facts for its discussion below.

          I. The Parties

          NU is a non-profit, charitable corporation that offers undergraduate and graduate education degrees. Plaintiff was a student at NU from the fall of 2013 until she graduated in December, 2017.

          NU operates a Department of Residential Life (the "Department"), which employs and trains staff to supervise campus residential life. During the relevant time period, Defendant Jose was NU’s Associate Dean of Cultural, Residential and Spiritual Life, and the Director of NU’s Residence Life Office. Jose was tasked with general oversight of the Department, including the hiring, training and overseeing its staff, and with ensuring that NU campus policies were enforced. Jose had supervisory authority over Defendant Antonucci, who served as an Area Coordinator at NU. Antonucci was responsible for training and directly overseeing the work of certain resident assistants ("RAs").

          NU operates a Student Conduct and Conflict Resolution ("OSCCR") program, which administers disciplinary proceedings against students alleged to have violated the University’s Code of Student Conduct (the "Code"). Defendant Estabrook was NU’s Associate Vice President for Student Affairs, and oversaw OSCCR. Defendant Wegmann was NU’s Director of OSCCR, and was charged with enforcing the Code and other University policies, as well as supervising, hiring and training Student Conduct Board and Appeals Board members. Defendant Sevigny was NU’s Assistant Director of OSCCR, and provided training to both Residential Life staff and members of the Student Conduct Board.

          II. Relevant NU Policies

          A. The Code

          At all relevant times, the Code prohibited underage students from drinking or possessing alcohol on campus, including in residence halls, and prohibited all students from furnishing alcohol to underage students. Underage students were prohibited from even being in the presence of alcohol, unless such alcohol was in the possession of a roommate who was age 21 or older. The Code further prohibited excessive alcohol consumption and sexual assault. Students who violated the Code could be subject to discipline by NU.

          B. NU’s Security and Supervision of Residence Halls

          NU engages certain students as RAs to serve as role models for the University’s undergraduate community. RAs are "paraprofessional" members of NU’s Residence Life Office. They are required to sign a "Resident Assistant Agreement," and receive financial compensation in the form of on-campus housing in exchange for their service. RAs are engaged, trained and supervised by NU staff.

          NU requires its RAs to be familiar with the Code, to perform periodic rounds in their assigned buildings, to serve as resident hall proctors, to intervene if students violate community norms, to remain sober and drug-free while on duty, and to maintain high standards of personal conduct and integrity. RAs also are required to take corrective action and report any violation of the Code to their supervisors, even if the violation occurs when the RA is "off duty" or in a building to which the RA is not ordinarily assigned. The failure of an RA to intercede when students under 21 years old are drinking alcohol, to obtain assistance for students in need, and to report Code infractions are all violations of an RA’s duties under the Code. Such violations could serve as a basis to dismiss the RA from that role.

          III. The Events of October 31, 2013

          In the fall of 2013, Plaintiff was a freshman at NU. NU required that all freshman students live on campus. Plaintiff lived in International Village, one of the University’s residence halls. Another freshman student ("the assailant"), who was Plaintiff’s classmate and part of her student study group, also lived in International Village.[3]

          On October 31, 2013, Plaintiff and the assailant were invited to attend a Halloween party hosted by a sophomore student, Stacey Anderson, in Anderson’s dorm room at 97 St. Stephen Street, a property leased by NU for student housing. Plaintiff, the assailant, Anderson, and Patrick Ward, another sophomore student attending the party, were classmates and had socialized on prior occasions. These four students, as well as all of the other attendees at the party, were under the age of 21.

          That evening, Plaintiff and the assailant consumed alcohol in Plaintiff’s dorm room, and then made their way to the party at around 9:00 p.m. Once at the party, Plaintiff and the assailant consumed rum and Coke that they had brought with them in a Coca Cola bottle; and the assailant additionally provided Plaintiff with Fireball whiskey that he obtained from another party-goer (not Anderson or Ward). Plaintiff also played drinking games with some or all of the party participants.

          Anderson was an RA on duty on the evening of the party. She left the party at times to attend to her rounds, but always returned to the room when she was finished. Ward was also an RA, but served in another dorm and was not on duty at the time of the party.

          At some point during the evening, Plaintiff became very intoxicated and vomited several times in Anderson’s bathroom. Two female NU students who also were at the party stayed with Plaintiff in the bathroom to lend support to her. The two wanted to take Plaintiff back to her dorm room, but did not believe that the proctors who signed residents into the dormitory would allow Plaintiff to enter the building in her visibly intoxicated state, and might even seek to discipline them on account of Plaintiff’s condition. The assailant, who was also intoxicated, volunteered to take Plaintiff home, because they lived in the same dormitory and he needed to get up early for crew practice.

          Despite their awareness that party attendees were under the age of 21, RAs Anderson and Ward observed many attendees drink alcohol to the point of intoxication, personally consumed alcohol themselves, and played drinking games with other party-goers. During the time that Plaintiff was at the party, neither Anderson nor Ward assisted Plaintiff by calling NU police to assess her condition, by offering her safe transport home (as was available pursuant to the University’s Medical Amnesty policy), or by volunteering to escort Plaintiff back to her dorm room.

          Plaintiff and the assailant departed the party at around 11:20 p.m., and Plaintiff texted her roommate to let her know that she was on her way home. Plaintiff relied on the assailant for support as the two walked and, at one point, Plaintiff stumbled and fell, causing the assailant to fall himself. At some point during the walk, the assailant took the Plaintiff’s cell phone and identification from her. The two students also kissed during the course of the walk. When they arrived at their dormitory, Plaintiff leaned on the proctor’s desk as the proctor checked her and the assailant’s identification. Plaintiff was unsteady on her feet as she left the proctor’s desk and approached the elevators in the dorm.

          The assailant then told Plaintiff that he needed to get something from his room, and invited Plaintiff to come with him while he retrieved the item. Plaintiff agreed, and accompanied the assailant to his room. Once inside the room, the assailant kissed Plaintiff, and the two eventually ended up undressed in the assailant’s bed. The assailant then initiated sexual relations with Plaintiff. Plaintiff said "ouch" several times, and further informed the assailant that she was a virgin. The assailant then told Plaintiff that he would get a condom. Plaintiff did not respond or say that she did not want to have sex, but recalls today that she was very uncomfortable at the time. The assailant also guided Plaintiff’s head down to his groin in an attempt to prompt her to perform oral sex on him, but told her she could stop when she said, "I have never done this before." At certain points during the encounter, Plaintiff rolled over and pulled the blanket up over her head; and, at least at one other point, Plaintiff vomited in the assailant’s bathroom. Plaintiff was afraid to leave the dorm room, because she thought that the assailant would not let her do so or that he might hurt her. Ultimately, the assailant and Plaintiff had oral, anal, and vaginal sex over the course of several hours.

          When Plaintiff returned to her own dorm room the next morning, she cried and confided to her roommate what had occurred. The roommate asked whether Plaintiff would have stopped the encounter had she been sober, and Plaintiff replied that she would have. With Plaintiff’s consent, the roommate told their RA about the alleged sexual assault. Plaintiff also disclosed the sexual assault to her mother, who accompanied Plaintiff to the NU Police Department ("NUPD") to report the incident. NUPD then accompanied Plaintiff and her mother to the Emergency Room at Beth Israel Hospital for an assessment, and the hospital thereupon performed a rape kit.

          IV. NU’s Response to Plaintiff’s Report

          A. Interim Measures Offered to Plaintiff

          NU extended Plaintiff certain interim protective measures following her report of this incident. Specifically, the University issued a "no contact" order which precluded the assailant and Plaintiff from directly or indirectly communicating with one other. The assailant fully adhered to the no contact order. NU additionally offered Plaintiff the option to transfer out of the lone class that she was then taking with the assailant and to move out of International Village, but Plaintiff declined. Plaintiff requested instead that NU transfer the assailant out of her class and dormitory. The University declined to do so, however, because the assailant had not been found responsible for any policy violation, and because the University had not yet determined whether failing to take such actions would create a hostile environment for the Plaintiff.

          B. NUPD’s Investigation and Report

          NUPD promptly investigated Plaintiff’s report by collecting evidence, reviewing surveillance footage, and interviewing Plaintiff, the assailant, and Plaintiff’s roommate. The NUPD then generated a report (the "NUPD Report") that identified other party attendees, including Anderson and Ward. NUPD did not, however, interview any of these other party attendees. One of the two female students who stayed in the bathroom with Plaintiff when she was sick at the party provided an account to NUPD on her own initiative, but NUPD did not document her statement.

          C. Anderson and Ward

          The NUPD Report was furnished to Defendant Wegmann, the OSCCR Director, who shared it with Defendant Sevigny, the OSCCR Assistant Director, and Defendant Estabrook, the Associate Vice President of Student Affairs. Although the Report revealed that Anderson and Ward had consumed alcohol with NU students who were under 21 years of age, Wegmann, Sevigny and Estabrook did not discipline Anderson or Ward for their violations of the Code and their agreement as RAs; nor did they inform the University staff responsible for their supervision, including Defendants Antonucci or Jose, of these violations. Ultimately, Anderson and Ward were never investigated, disciplined or sanctioned for their conduct on October 31, 2013.

          After learning of Plaintiff’s report, Ward told his supervisor, a Residence Hall Director ("RD"), that minor students (including Plaintiff and the assailant) had consumed alcohol at a party at a student’s residence on the night that Plaintiff reported being sexually assaulted by the assailant. The RD did not convey this information to his supervisors, including Defendants Antonucci or Jose.

          D. Disciplinary Proceedings

          Based on the NUPD Report, OSCCR charged the assailant with a Code violation of "sexual assault with penetration." Disciplinary proceedings were conducted before a Student Conduct Board (the "Board") comprised of five students who operated under the supervision of an OSCCR staff member. In this instance, Brooke Tempesta ("Tempesta"), an Assistant Director of Student Conduct, assembled the five-person Board and oversaw its hearings into the charge brought against the assailant. Tempesta’s role was to ensure that the hearing procedures outlined in the Code were followed, and to answer any procedural questions that arose.

          In order to become a Board member, NU students first needed to meet eligibility requirements and to be interviewed by OSCCR staff. Selected Board members were further required to complete a four-hour training module conducted by OSCCR, the Office of the General Counsel, and other campus partners, and to observe one full OSCCR proceeding. In order to serve on a sexual assault case, Board members were additionally required to complete a three- to four-hour specialized training in which Defendants Wegmann and Sevigny assisted. This training focused on sexual misconduct charges, the definitions of consent and incapacitation, and the implications of drug and alcohol consumption in matters of sexual assault.

          At the time of the decision, the Code provided:

CONSENT: Appropriate sexual behavior requires consent from all parties involved. Consent means a voluntary agreement to engage in sexual activity proposed by another and requires mutually understandable and communicated words and/or actions demonstrating agreement by both parties to participate in all sexual activities.
Consent may never be given by ... those who are incapacitated as a result of alcohol or other drug consumption (voluntary or involuntary).... A person who knows or should reasonably have known that another person is incapacitated may not engage in sexual activity with that person. Incapacitation is a state where one cannot make a rational, reasonable decision because they lack the ability to understand the who, what, when, where, why or how of their sexual activities.

(J.A., Ex. 8 at 20.).

          On November 21, 2013, the matter proceeded to a disciplinary hearing before the Board. Plaintiff and the assailant both had hearing advisors present to assist them during this proceeding. The Board heard opening and closing statements from NUPD Officer Adam Keeling, the Plaintiff, and the assailant. The Board then asked questions of each individual and, per Plaintiff’s request, the questions were posed through the Board Chair.

          After the hearing, the Board deliberated and determined by a vote of 4-1 that the assailant was not responsible for the Code violation of sexual assault with penetration. The following day, November 22, 2013, Tempesta issued a letter to the assailant, informing him of the Board’s decision. Plaintiff also received notification of this decision; but, in accordance with NU’s policy at the time (and to which she consented), Plaintiff was not provided with the rationale for the Board’s decision. In the notification letter transmitted to the assailant, Tempesta explained:

The Board determined that you and the complainant had consumed alcohol on the night of the incident and engaged in sexual activity. Throughout the hearing you relayed to the Board actions that occurred with the other party that you believed to have communicated consent. The Board considered your account along with the account provided by the complainant. The Board then considered whether a "reasonable person" would consider the words and/or actions expressed by the complainant during the incident to indicate consent to each sexual activity.
Due to the severity of the alleged violation, members of the Board spent a substantial amount of time reviewing all information presented. The Board considered Northeastern University’s Code of Student Conduct definition for Sexual Assault and consent. Upon review of the information as it relates to the charge of Sexual Assault with penetration, the Board could ...

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