United States District Court, D. Massachusetts
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
Harnois, a former graduate student at the University of
Massachusetts (UMass) Dartmouth, brought suit against UMass
Dartmouth and a number of its employees 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.
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.
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.
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.
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.
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.
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
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.
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
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.” Id. ¶ 146.
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.
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.
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.
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
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.
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
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
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
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.”
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.
filed this lawsuit on April 12, 2019 and filed a Third
Amended Complaint on July 17, 2019.
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.
I and II: Title IX violations.
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.
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).
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.
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
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.
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