Harnois v. University of Massachusetts at Dartmouth

          MEMORANDUM AND ORDER ON DEFENDANTS' RULE 12(b)(6) MOTION TO DISMISS October 28, 2019 STEARNS, D.J.

          RICHARD G. STEARNS UNITED STATES DISTRICT JUDGE

         John Harnois, a former graduate student at the University of Massachusetts (UMass) Dartmouth, brought suit against UMass Dartmouth and a number of its employees^[1] for the alleged mishandling of a Title IX investigation and inquiries into the truthfulness of his application for admission. Having decided defendants' Rule 12(b)(1) motion, the court now turns to the related Rule 12(b)(6) motion.^[2]

         For the reasons explained below, defendants' Fed.R.Civ.P. 12(b)(6) motion will be denied with respect to Counts I, II, III (procedural due process claims against Cummings, Majewski, Gomes, and Helm only), IV, VII (against Cummings and Majewski only), VI (against Cummings, Majewski, and Professor Doe only), Count VIII (against Cummings only), and XV (Webster only). Defendants' Rule 12(b)(6) motion will be allowed as to all remaining claims.

         BACKGROUND

         The essential facts, viewed in the light most favorable to plaintiff as the nonmoving party, are as follows. Harnois is a disabled veteran, who enrolled at UMass Dartmouth to pursue a Ph.D. in Oceanography.

         In April of 2015, after completing a graduate internship in underwater acoustics, Harnois was recommended to UMass Dartmouth Professor John Buck, who agreed to serve as his PhD supervisor. Professor Buck also promised to help Harnois develop research projects for his dissertation.

         Harnois has a prior criminal conviction which he had disclosed to the Director of Graduate Studies and Admissions, Scott Webster. Webster assured Harnois that he and his staff would keep the conviction confidential. Assistant Vice Chancellor for Student Affairs Cynthia Cummings knew that Webster had reviewed Harnois's disclosure statement.

         In September of 2015, Harnois enrolled in three classes at UMass Dartmouth as part of a Master's degree program. Harnois joined the Master's program with the understanding that he “would be considered on the FastTrak program for acceptance into the Ph.D. program once [he] wrote a research proposal.” Third Am. Compl. (TAC) ¶ 37 n.3. His three course teachers, together with Professor Buck, recommended Harnois for the PhD program.

         In December of 2015, Harnois developed a joint research project with Professor Buck and another senior scientist. In February of 2016, Professor Buck arranged for Harnois's admission to a prestigious bioacoustics summer program. During the Spring of 2016, Harnois was recruited by Duke University to apply to a summer internship at the Duke Marine Lab. In the Spring of 2016, Harnois maintained a 4.0 GPA in his graduate classes.

         On May 3, 2016, Cummings ordered Harnois to attend a meeting to discuss the disclosure statement that Harnois provided on his application for admission. The following day, Harnois met with Cummings and Majewski. At the start of the meeting, Cummings accused Harnois of “fraudulently disclosing his history in his application.” Id. ¶ 113. She demanded that Harnois withdraw from UMass Dartmouth. Cummings also told Harnois that several individuals “had recently filed formal complaints regarding [Harnois's] misconduct, which created a hostile learning environment, and that [UMass Dartmouth was] considering a Title IX investigation.” Id. ¶ 118. Harnois asked to be informed of the specifics of the allegations made against him, including when and by whom the allegations were made. Cummings told him no more than that complaints about his conduct had been received as early as December of 2015.

         During the meeting, Cummings demanded that Harnois sign a document acknowledging that if he were to remain on the UMass Dartmouth campus after the meeting, he would subject himself to arrest for criminal trespass. Harnois objected and asked to speak with Professor Buck for advice. Cummings rejected the request.

         Cummings then told Harnois that if he withdrew voluntarily from UMass Dartmouth he would not be subjected to the Title IX investigation and his criminal history would be kept secret. Cummings promised to ensure that Harnois would receive excellent letters of recommendation, to continue his education elsewhere. When Harnois declined to withdraw, Cummings threatened to “get his kind.”^[3] Id. ¶ 146.

         UMass Dartmouth suspended Harnois effective immediately on May 4, 2016, citing a pending Title IX investigation and the allegation that Harnois had “a more extensive criminal history than [he] disclosed prior to being admitted to the Master's program in Marine Science.” Dkt # 43-1 at 1 (incorporated by reference). Cummings wrote a letter reporting Harnois's suspension, his criminal record, and that Harnois had been banned from the UMass Dartmouth campus without a police escort. Cummings copied others on the letter, including the Dean of Harnois's degree program and three of her staff members who had no prior knowledge of Harnois's criminal record.

         Following the suspension, Cummings and Majewski ordered Steve Lorenz, a dean at the UMass Dartmouth School for Marine Science and Technology (SMAST), “to hold an unprecedented all hands meeting with compulsory attendance regarding Plaintiff.” TAC ¶ 160. The meeting participants were told of the Title IX investigation and the fact that Harnois had been banned from campus grounds. In conveying this information, Lorenz intimated that students should avoid speaking with Harnois and should consider him dangerous. Within a week of the “all hands” meeting, the entire faculty, staff, and students in Harnois's degree program were aware that he had a criminal record and was the subject of an impending Title IX investigation.

         In the weeks that followed, Harnois attempted to learn the nature of the specific allegations made against him. In response to a May 9, 2016 email asking Majewski for a written copy of the complaints, Majewski told Harnois the Title IX investigation would begin immediately and informed Harnois of his procedural rights in anticipation of an investigatory interview session. Majewski said only that UMass Dartmouth was investigating alleged violations of the University's Policies on Equal Opportunity, Discrimination, Harassment, and Sexual Violence. Harnois sought to have Professor Buck serve as his advisor during the Title IX investigation; Majewski rejected Harnois's request and suggested that he retain outside counsel.

         On May 17, 2016, UMass Dartmouth Police filed a report based on information provided by Cummings and Professor Doe that Harnois had logged into his campus computer in violation of the “Do Not Trespass” order. During a subsequent investigation, a UMass Dartmouth police detective confiscated Harnois's computer to conduct a forensic examination. The police failed to uncover any violation by Harnois of the no trespassing order.^[4]

         On May 20, 2016, Mehmet Baysan, Harnois's attorney, emailed Majewski raising the first of several objections to UMass Dartmouth's refusal to provide details of the allegations against Harnois. On June 7, 2016, Majewski responded only that Harnois's behavior had created “an uncomfortable learning and work environment” for his colleagues. Id. ¶ 201 n.50.

         During its investigation, UMass Dartmouth's Title IX office asked two female students in Harnois's graduate program to file complaints against Harnois but both refused to do so. Eventually, the Title IX investigator contacted every female student in Harnois's classes in search of derogatory information.

         On July 15, 2016, Harnois and Baysan met with Cummings, Majewski, and then-Deputy Director (now Director) of Diversity and Inclusion David Gomes, for an investigative interview. Harnois was not informed of his accusers or the details of the allegations. The interview was conducted in an adversarial manner with questions often so vague - for example, “did you ever deny helping someone with their homework” - that Harnois was unable to answer them. Id. ¶ 210. In total, Gomes asked Harnois approximately 15-20 questions, addressing generally “innocuous behavior.” Id. ¶ 209. Harnois's request for a written copy of the questions was denied.

         As a result of his suspension from campus for the spring/summer term, Harnois was unable to attend classes, seminars, and university-sponsored programs. Harnois also was unable to access academic books, notes, and a personal computer that had been seized by the investigators. In August of 2016, Harnois began suffering from panic attacks, insomnia, headaches, depression, PTSD flashbacks, loss of hair and hair color, and grinding of teeth so severe that two molars cracked.

         In a letter dated August 30, 2016, Majewski informed Harnois that the evidence was insufficient to support a finding that Harnois had violated UMass Dartmouth's Policies on Equal Opportunity, or Title IX. Nevertheless, Harnois was “sanctioned with a warning in writing.” Id. ¶ 228. In addition, Harnois was informed that his studies would be restricted and that any repeat behavior would incur “immediate harsh penalties.” Id.

         Subsequently, Harnois was confined to a remote, supervised workspace; his engagements with other students became limited; and he was prevented from going about his day in the graduate student work area. Although Harnois enrolled in classes for the 2016 Fall semester, he felt exiled from the academic community. In September of 2016, a SMAST dean informed Harnois that because of the investigation, Professor Buck would no longer serve as his thesis advisor. The dean told Harnois that his matriculation status was being changed to that of a non-thesis degree candidate from that of a Master's student “with a research thesis/fasttrack to PhD.” Id. ¶ 236. Harnois withdrew from an oceanography course because the course required “classroom deliberation with other students, mostly females.” Id. ¶ 249. He felt compelled to seek a leave of absence to receive psychological treatment because his on-campus work environment became “hostile and toxic.” Id. ¶ 8.

         Harnois filed this lawsuit on April 12, 2019 and filed a Third Amended Complaint on July 17, 2019.

         DISCUSSION

         “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Two basic principles guide the court's analysis. “First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678. “Second, only a complaint that states a plausible claim for relief survives a motion to dismiss.” Id. at 679. A claim is facially plausible if its factual content “allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678.

         Counts I and II: Title IX violations.

         Harnois alleges that UMass Dartmouth violated Title IX of the Educational Amendments of 1972, 20 U.S.C. § 1681, et seq. He separately alleges selective enforcement, erroneous outcome, deliberate indifference/hostile environment harassment, and Title IX retaliation.

         Title IX provides in pertinent part that “[n]o person . . . shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a). Title IX provides for an implied private right of action for money damages, extending “only to claims against the educational institution itself.” Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 65 (1st Cir. 2002).

         The University of Massachusetts receives federal financial assistance; accordingly, UMass Dartmouth is liable to suit under Title IX. See Doe v. Univ. of Massachusetts-Amherst, 2015 WL 4306521, at *6 (D. Mass. July 14, 2015). Harnois asserts that he was a student pursuing a graduate degree at UMass Dartmouth; he thus alleges participation in an “education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681.

         Selective enforcement.

         To make out a selective enforcement claim, a plaintiff must allege facts sufficient to support a reasonable inference that “‘the severity of the penalty and/or the decision to initiate the proceeding was affected by [Harnois's] gender, '” Haidak v. Univ. of Massachusetts-Amherst, 933 F.3d 56, 74 (1st Cir. 2019), quoting Yusuf v. Vassar Coll., 35 F.3d 709, 715 (2d Cir. 1994), and - more specifically - that gender was a “motivating factor.” Haidak, 933 F.3d at 74.^[5]

         Here, Harnois points to Cummings's alleged threat: “If you won't leave, I'll get your kind with a Title IX investigation.” TAC ¶ 146. Harnois invites the inference that “your kind” referred to students with Harnois's characteristics, including his gender. Harnois alleges also that funding pressures motivated UMass Dartmouth to open Title IX investigations against males specifically, a) because University leadership operated under a belief - as allegedly expressed publicly by UMass Dartmouth's Vice Chancellor for Student Affairs - that “sexual assaults are perpetrated [exclusively] by men, ” id. ¶ 84; b) because the U.S. Department of Education had named the University of Massachusetts as one of several colleges and universities under investigation for possible Title IX violations; and c) because news media, and institutional actors from other universities, recognized, as Harnois explains it, that “a fear of governmental intervention and withdrawal of funds could lead colleges to rush to judgment against male students.” Id. ¶ 67. According to Harnois, “[t]he threat of revocation of federal funds - the ultimate penalty - was a powerful tool in motivating colleges, including [UMass Dartmouth], to aggressively pursue and punish male students accused of sexual misconduct.” Id. ¶ 69.

         Harnois also maintains that UMass Dartmouth's recent settlement of a costly gender discrimination lawsuit initiated by a female employee “hypersensitized” UMass Dartmouth to “suits by females filing Title IX discrimination complaints, ” id. ¶ 83, such that UMass Dartmouth was motivated to undertake preemptive and precipitous investigation of male students accused of Title IX misconduct. These allegations, collectively, if believed by a jury, are sufficient to support an inference that Harnois's gender was a “motivating factor” in the decision of UMass Dartmouth to initiate a baseless Title IX investigation.

         Erroneous ...