Case 1:14-cv-03027-RM-MEH Document 19 Filed 11/21/14 USDC Colorado Page 1 of 53 UNITED STATES DISTRICT COURT DISTRICT OF COLORADO --------------------------------------------------------------X JOHN DOE, : : Plaintiff, : : -against: : UNIVERSITY OF COLORADO : BOULDER, : : Defendant. : --------------------------------------------------------------X Civ. No. 1:14-CV-03027 AMENDED COMPLAINT (REDACTED) JURY TRIAL DEMANDED Plaintiff John Doe 1 (hereinafter referred to as “Plaintiff” or “John Doe”), by his attorneys Nesenoff & Miltenberg, LLP and Michael Mirabella, P.C., as and for his Complaint, respectfully alleges as follows: THE PARTIES 1. Plaintiff John Doe (“Plaintiff”) is a natural person residing in Claremont, California. During the events described herein, John Doe was a student at CU Boulder and resided off-campus in Boulder, Colorado. 2. Upon information and belief, Defendant University of Colorado Boulder (“Defendant CU Boulder” or “CU Boulder”) is a public research university located in Boulder, Colorado. 1 Plaintiff has filed, contemporaneously with this Complaint, a Motion to proceed pseudonymously. Case 1:14-cv-03027-RM-MEH Document 19 Filed 11/21/14 USDC Colorado Page 2 of 53 3. John Doe and Defendant CU Boulder are sometimes hereinafter collectively referred to as the “Parties”. JURISDICTION AND VENUE 4. This Court has diversity and supplemental jurisdiction pursuant to 28 U.S.C. § 1331 and under 28 U.S.C. § 1332 because: (i) John Doe and CU Boulder are citizens of different states and the amount in controversy exceeds $75,000.00, exclusive of costs and interest; and (ii) the state law claims are so closely related to the federal law claims as to form the same case or controversy under Article III of the U.S. Constitution. 5. This Court has personal jurisdiction over CU Boulder on the grounds that CU Boulder is conducting business within the State of Colorado. 6. Venue for this action properly lies in this district pursuant to 28 U.S.C. §1391 because a substantial part of the events or omissions giving rise to the claim occurred in this judicial district. THE NATURE OF THIS ACTION 7. John Doe seeks redress against Defendant University of Colorado Boulder (“Defendant CU Boulder” or “CU Boulder”) due to the actions, omissions, errors, and the flawed procedures, and/or negligence and overall failure to provide 2 Case 1:14-cv-03027-RM-MEH Document 19 Filed 11/21/14 USDC Colorado Page 3 of 53 John Doe with a meaningful standard of due process and equity, concerning the wrongful allegations of sexual misconduct made against John Doe. 8. John Doe is a male, junior student at CU Boulder in good standing, and member of the CU Boulder cycling team with an otherwise unblemished record. The allegations were made by fellow CU Boulder student, Jane Doe, after one evening of consensual sexual intercourse following Jane Doe and John Doe meeting at a house party on campus. 9. After a diligent, in-depth investigation, the Boulder Police Department made the informed decision not to pursue Jane Doe’s report of non-consensual sexual intercourse. Notwithstanding the foregoing, CU Boulder made the decision to charge John Doe with violations of CU Boulder’s Student Conduct Code Policies & Procedures (“Code”) for sexual misconduct with respect to Jane Doe. 10. During CU Boulder’s investigation, Jane Doe made several express admissions to having committed perjury and/or otherwise knowingly provided false and/or otherwise fabricated statements to the Boulder Police Department and CU Boulder officials due to the fact that she was “pissed off” when she realized that John Doe had rebuffed her, and because she thought John Doe was “just another douchy frat dude.” Notwithstanding the foregoing, CU Boulder found John Doe responsible for sexual misconduct, and sanctioned him to a three-term suspension. 3 Case 1:14-cv-03027-RM-MEH Document 19 Filed 11/21/14 USDC Colorado Page 4 of 53 11. The foregoing, coupled with CU Boulder’s violation of its own policies during the course of its investigation, combined with its arbitrary and capricious findings, has stopped dead in its tracks John Doe’s education; he is unable to complete his studies at CU Boulder and his efforts to transfer to another college of equal caliber has been severely compromised by the negative impact of his threeterm suspension; the monies spent on obtaining a college education at CU Boulder squandered; and John Doe’s emotional health has been greatly compromised by the entire ordeal. Thus, John Doe brings this action to obtain relief based on causes of action for, among other things, violations of Title IX of the Education Amendments of 1972 and state law. FACTUAL ALLEGATIONS COMMON TO ALL CLAIMS I. Agreements, Representations, Covenants And Warranties Between John Doe and Defendant CU Boulder 12. John Doe is a California native who worked diligently in high school and graduated with high honors. John Doe completed the SAT standardized college entrance examination with competitive scores. 13. CU Boulder was just one of the universities where John Doe applied to for his prospective college education. Ultimately, John Doe made an informed decision to attend CU Boulder and enter the class of 2015. 4 Case 1:14-cv-03027-RM-MEH Document 19 Filed 11/21/14 USDC Colorado Page 5 of 53 14. Upon his acceptance, CU Boulder provided John Doe with copies of its school policies, including the Student Conduct Code Policies & Procedures 2012-13 (“Code”) and the Sexual Harassment Policy and Procedures (“Sexual Harassment Policies”). The Code and the Sexual Harassment Policies are also readily available on CU Boulder’s Internet website. 15. CU Boulder’s Student Conduct Code Policies & Procedures 2012-13 state in relevant part: The student will understand the effect of their behavior on others…the student will gain a better understanding of the importance of personal integrity. Code, “Clarification of Values,” p. 1. 16. Regarding student participation in the student conduct process, the Code states: Students have a duty to cooperate and discuss the incident with an investigator and conduct officer over the telephone or in person, adhere to stated deadlines, attend scheduled meetings, and participate in all proceedings. Code, “Duties of Students,” p. 2. Students and university employees are expected to participate as reasonably requested in conduct proceedings as a responsibility of membership in the university community and failure to do so may result in disciplinary action. Code, “Office of Student Conduct Procedures,” p. 6. 5 Case 1:14-cv-03027-RM-MEH Document 19 Filed 11/21/14 USDC Colorado Page 6 of 53 17. According to its policies, CU Boulder will make credibility determinations during the student conduct process: The conduct officer will make determinations about the facts and the credibility of those providing information and determine whether the student has violated the Student Conduct Code. Code, “Office of Student Conduct Procedures,” p. 6. 18. CU Boulder’s policies on underage drinking states: In the case of a student who is found responsible via the student conduct process to have endangered the health, safety or welfare of an individual through the provision of alcohol, the minimum disciplinary sanction shall be suspension. Code, “Prohibited Student Conduct,” p. 3. On the Boulder campus, students may consume alcohol only if they are of legal drinking age and do so in designated areas. Students should consult with Housing and Dining Services or other facility supervisors to determine where the designated areas are located. Drinking by underage students or in nondesignated areas on campus violates the Student Conduct Code and Housing and Dining Services policies (for Housing and Dining Services policies see Residence Hall Policies at www.colorado.edu/studentaffairs/studentconduct/code.html.) Code, “Related Information,” p. 12. The legal drinking age in Colorado is 21. In a residence hall, students of legal age may possess and consume alcoholic beverages only in their rooms with the door closed. Drinking by underage students is a violation of state law and residence hall policy. Residence Hall Policies, p. 5 (emphasis added). 6 Case 1:14-cv-03027-RM-MEH Document 19 Filed 11/21/14 USDC Colorado Page 7 of 53 19. CU Boulder’s Sexual Harassment Policy and Procedures state, among other things: The University does not discriminate on the basis of race, color, national origin, sex age, disability, creed, religion, sexual orientation, or veteran status in admission and access to, and treatment and employment in, its educational programs and activities. Sexual Harassment Policy and Procedures, p.1. 20. The complainant and the respondent both have the following rights with respect to allegations of sexual misconduct: Receive written notice of the report or complaint, including a statement of the allegations, as soon after the commencement of the investigation as is practicable and to the extent permitted by law; Present relevant information to the investigator(s); and Receive, at the conclusion of the investigation and appropriate review, a copy of the investigator’s report, to the extent permitted by law. Sexual Harassment Policy and Procedures, p.3. 21. Pursuant to CU Boulder’s Sexual Harassment Policy and Procedures, the committee in charge of determining responsibility for charges of sexual misconduct shall “have received appropriate training” and has the power to: …[c]onsult with the investigator, consult with the parties, request that further investigation be done by the same or another investigator, or request that the investigation be conducted again by another investigator. The standing review committee may adopt the investigator’s report as its own or may prepare a separate report based on the findings of the investigation. The standing review committee may 7 Case 1:14-cv-03027-RM-MEH Document 19 Filed 11/21/14 USDC Colorado Page 8 of 53 not, however, conduct its own investigation or hearing. Once the standing review committee has completed its review, the investigator shall send the final report to the complainant and the respondent, to the extent permitted by law. Sexual Harassment Policy and Procedures, p.3. 22. Additionally, CU Boulder’s Sexual Harassment Policy and Procedures states, “It also is a violation of this policy for anyone acting knowingly or recklessly either to make a false complaint of sexual harassment or to provide false information regarding a complaint.” Sexual Harassment Policy and Procedures, p.1. 23. Under the Code, a student who is suspended or expelled from the university is entitled to “assessment or refund of tuition and fees and/or Housing and Dining Services room and board costs” as of the date of suspension or expulsion. Code, p. 11. 24. In the Fall of 2011, John Doe traveled to Boulder, Colorado to join the class of 2015 at CU Boulder. II. Jane Doe Meets John Doe At A House Party 25. John Doe first met Jane Doe while she attended a party at a house party on the “Hill” of CU Boulder on the evening of September 26, 2013 (the “Evening of September 26”). Both John Doe and Jane Doe were drinking at the party. However, neither person was drunk or intoxicated. 8 Case 1:14-cv-03027-RM-MEH Document 19 Filed 11/21/14 USDC Colorado Page 9 of 53 26. After flirting back and forth throughout the evening, Jane Doe decided to sit on John Doe’s lap and began kissing John Doe on the couch of the common area of the house where the party was being held. They kissed for over an hour on the couch. Many fellow bystanders at the party, including John Doe’s friends, witnessed Jane Doe’s intimate, and public, affection toward John Doe. One witness even took a photo of Jane Doe straddling John Doe on the couch and making out. 27. At one point in the evening, Jane Doe asked, “Are you going to be a typical frat guy and never talk to me again or call?” 28. Jane Doe and John Doe left the party and when John Doe offered to walk Jane Doe home, she specifically suggested that she sleep at John Doe’s apartment instead. 29. Once inside his apartment, they went into John Doe’s room and they began kissing. John Doe left his room to get a condom from his roommate, upon Jane Doe’s request, and stayed to chat with his roommate for about 30 minutes before returning to the room. 30. John Doe and Jane Doe continued to undress and both comfortably joked about the fact that her pants were very tight and it was hard for her to take them off. Once she was able to remove her pants, her pants were placed onto the couch in John Doe’s bedroom. Both then got into John Doe’s bed. When Jane Doe discovered 9 Case 1:14-cv-03027-RM-MEH Document 19 Filed 11/21/14 USDC Colorado Page 10 of 53 that John Doe was still partially dressed in his boxer shorts, Jane Doe said, “are you sure you want to stay with that decision?” In response, John Doe took his boxer shorts off. 31. The two of them engaged in further sexual activity for the next 2-3 hours whereby Jane Doe made statements complimenting John Doe on the size of his genitals. 32. After they both performed oral sex on each other, they engaged in sexual intercourse. At some point, Jane Doe grew tired and the two decided to go to sleep. 33. By morning, John Doe awoke and noticed that Jane Doe was still in his bed. At that point, they engaged in additional sexual activity and, eventually, they had sexual intercourse. 34. Jane Doe spent the night at John Doe’s apartment and he walked her home to her apartment the next morning. 35. At all times, Jane Doe was not drunk, intoxicated or incapacitated. 36. At all times, Jane Doe’s cellular phone was on the nightstand and available for her to make phone calls if she needed help. At her request, John Doe also handed his cellular phone to Jane Doe because she wanted to set an alarm for class the next morning. 10 Case 1:14-cv-03027-RM-MEH Document 19 Filed 11/21/14 USDC Colorado Page 11 of 53 At all times, Jane Doe was free to leave John Doe’s apartment since John 37. Doe walked in and out of his room several times during the evening. 38. The next day, on September 27, 2013, Jane Doe text messaged John Doe at 9:30 p.m. to say hello, told him that she was “drinking at some house” and asked what John Doe was doing that night. John Doe texted that he was about to go to bed, and Jane Doe asked, “Why? It’s a crazy night!” John Doe responded that he wished he could enjoy the night too, but was not local at the time since he was at a bicycling event in Granby Ranch. III. Jane Doe Files False Allegations Against John Doe 39. On or about September 30, 3013, the Boulder Police Department responded to a complaint filed by Jane Doe’s resident hall director, Stephanie Keith, who notified them of a potential “sexual assault” with respect to the Evening of September 26. 40. Officer Beth McNalley interviewed Jane Doe and noted that Jane Doe’s “behavior was unusual in the sense that [she] was very casual about the incident” and that she “appeared more concerned about being on time for class than reporting this incident.” 11 Case 1:14-cv-03027-RM-MEH Document 19 Filed 11/21/14 USDC Colorado Page 12 of 53 41. Jane Doe described how she met John Doe and that she accompanied him to his apartment after leaving the party. However, Jane Doe’s description of the events that followed diverged dramatically from what actually occurred. 42. First, Jane Doe claimed that when they were at John Doe’s apartment, she objected to John Doe’s attempt to take her pants off and stated, “no, I don’t want to do that” and clinched her legs together really tight to prevent him from succeeding. To the contrary, John Doe and Jane Doe laughed about the fact that her pants were very tight and she proceeded to take them off herself. 43. Also, Jane Doe claimed that she did not have John Doe’s contact information. However, Jane Doe initiated text messages to John Doe less than 24 hours after they engaged in sexual activity at his apartment whereby she said “hello” and asked what John Doe was doing that night. 44. Jane Doe truthfully admitted to Officer McNalley that she was neither locked, nor restrained in John Doe’s bedroom and could have left. When asked why she did not attempt to leave John Doe’s apartment, Jane Doe said it was because she could not find her pants, so she slept on the bed with John Doe until the morning. However, John Doe told Jane Doe that she was welcome to turn the light on to search for her pants, but she opted not to turn the light on and ceased looking. 12 Case 1:14-cv-03027-RM-MEH Document 19 Filed 11/21/14 USDC Colorado Page 13 of 53 45. Jane Doe admitted that she had access to her cell phone the entire night. When asked whether she tried to call anyone for help, Jane Doe claimed that she tried text messaging several friends but none of them responded. Officer McNalley asked to see the text messages on her phone from that night, but Jane Doe responded that she had “deleted all of them” and was not able to provide exact names of who she contacted that night. 46. Officer McNalley observed that throughout the interview, Jane Doe was “casual” and “at times during the interview she laughed and smiled when describing the incident.” 47. During her interview, Jane Doe also stated that she was compelled to make the report because she wanted to get revenge and wanted “the shit to be scared out of him.” 48. As part of her investigation, Officer McNalley went to John Doe’s residence to interview John Doe about the Evening of September 26. When Officer McNalley began her interview of John Doe about the incident, she stated to him that “[Jane Doe] seems immature” and that she wants revenge against him. 49. On October 1, 2013, the Boulder Police Department contacted Jane Doe to notify her that the investigation was complete and that there was “no evidence to support the claim of sexual assault, and that the Boulder Police Department would 13 Case 1:14-cv-03027-RM-MEH Document 19 Filed 11/21/14 USDC Colorado Page 14 of 53 not be investigating this any further” and that the case was “closed.” Jane Doe responded, “ok, that’s fine.” IV. CU Boulder’s Mishandling of Jane Doe’s Complaint 50. Notwithstanding, Officer McNalley’s reported findings and ultimate decision to close the case, on or about October 14, 2013, John Doe was notified via email that he was being formally charged with four violations of the Code for the Evening of September 26, namely, (i) (ii) (iii) (iv) Non-consensual sexual intercourse; Non-consensual sexual contact; Violating the Discrimination and Harassment Policy and Procedures; and Possessing or using alcoholic beverages (the “Charges”). 51. Leslee Morris and Alexandra Tracy-Ramirez were the Investigators for the CU Boulder Office of Student Conduct who were assigned to investigate Jane Doe’s complaint of nonconsensual sex. Ms. Morris and Ms. Tracy-Ramirez are not independent fact finders or disinterested parties with any specialized training; they are both employed by CU Boulder and their role is essentially one of prosecuting sexual assault on campus. As such, when questioning John Doe throughout the process, their line of questioning was hostile in nature, more akin to crossexamination in tenor, and desired to illicit a confession, rather than an objective 14 Case 1:14-cv-03027-RM-MEH Document 19 Filed 11/21/14 USDC Colorado Page 15 of 53 attempt to factually reconstruct an event. Upon information and belief, Ms. Morris’s and Ms. Tracy-Ramirez’s actions were based on an anti-male gender bias. 52. John Doe was utterly shocked by the allegations, as he had engaged in clearly consensual sexual activity with Jane Doe over the course of several hours on the Evening of September 26, and advised CU Boulder investigators, Leslee Morris and Alexandra Tracy-Ramirez, as such. Furthermore, John Doe was shocked that only he would be charged with an alcohol violation when Jane Doe admittedly consumed alcohol that evening too. 53. In the October 14, 2013 email notification, John Doe was provided with only four days advance notice by which he was to meet with Leslee Morris, Office of Student Conduct so as to provide his defense to the Charges. 54. Due to the serious nature of the Charges and the criminal implications of any statements made during the student conduct process, John Doe appropriately and in good faith requested that his criminal attorney appear with him at the meeting with Ms. Morris. CU Boulder refused to make such accommodation and required his appearance by the four-day deadline or threatened that he would waive his right to make his initial statement in his defense. As a result, John Doe was unable to make any statements in his defense to Ms. Morris at the October 18, 2013 meeting. 15 Case 1:14-cv-03027-RM-MEH Document 19 Filed 11/21/14 USDC Colorado Page 16 of 53 55. CU Boulder’s actions resulted in John Doe’s inability to participate in the initial meeting; this was significantly prejudicial because CU Boulder does not hold a formal “hearing” process to adjudicate student conduct violations. Instead, CU Boulder’s standard procedure is to assign a conduct officer(s) to meet with the complainant and respondent, interview any witnesses, gather documentary evidence, and “make determinations about the facts and the credibility of those providing information and determine whether the student has violated the Student Conduct Code.” Code, p. 6. The conduct officer(s) will determine any “aggravating or mitigating circumstances and assign sanctions.” Id. Thus, missing a “meeting” is equivalent to being unable to “testify” in his defense. 56. In stark contrast to CU Boulder’s unyielding treatment of John Doe, Jane Doe was provided with one month to meet with CU Boulder officials to discuss her complaint. Office of Student Conduct contacted Jane Doe no less than four times between September 29, 2013 to October 14, 2013 to request that she appear in person to make a formal complaint, to no avail. On October 23, 2013, Office of Student Conduct contacted Jane Doe again and scheduled a meeting with her so that she could “participate in the conduct process” and make a formal complaint against John Doe. 57. CU Boulder’s policies require students to fully cooperate and participate as requested in conduct proceedings. Code, Section H(4), p. 6. While CU Boulder 16 Case 1:14-cv-03027-RM-MEH Document 19 Filed 11/21/14 USDC Colorado Page 17 of 53 required John Doe to meet with the conduct officer within four days of receiving notice of the Charges, CU Boulder allowed Jane Doe to delay meeting with the conduct officer for one month. CU Boulder allowed unreasonable leeway for Jane Doe be excused from participating in the conduct process even though she brought forth the Charges against John Doe. All the while, CU Boulder demanded John Doe’s strict compliance with CU Boulder policies for participation, and would not even reschedule a meeting with his advisor of choice. 58. Although John Doe requested a copy of the police reports prior to the October 18, 2013 meeting so that he may prepare for his response to the allegations, CU Boulder refused to provide the police reports in advance of his October 18, 2013 meeting and coldly stated, “that does not impact the deadline that we have established for our process…” Similarly, CU Boulder failed and refused to provide him with a copy of Jane Doe’s written statement against him, despite due demand. Even if John Doe’s criminal attorney was available to meet on October 18, CU Boulder’s failure and refusal to provide all relevant and material information about the allegations was prejudicial to John Doe’s ability to mount a defense. 59. Throughout the student conduct process, Dean Christina Gonzales failed to advise John Doe of any other source of support available to him. 17 Case 1:14-cv-03027-RM-MEH Document 19 Filed 11/21/14 USDC Colorado Page 18 of 53 60. CU Boulder failed to conduct a timely investigation of the Charges and failed to timely bring the case to a close in violation of Student Conduct Code Policies & Procedures, Appendix 1 (D) (1), p. 15. This particular failure also flies in the face of CU Boulder’s decision not to make schedule accommodations for John Doe’s criminal attorney’s presence at his initial student conduct process meeting with Ms. Morris. 61. Jane Doe admitted that she originally described the Evening of September 26 to her resident advisor, not as “rape” or “non-consensual,” but that she “needed to say [this] to someone and have some clarification for [herself] [about what happened].” Jane Doe did not initially intend on making a formal report about the Evening of September 26 as a violation of the Code. 62. Jane Doe also admitted to CU Boulder officials that she “may have stretched the truth” because she was “pissed off” and that the points in the police report were not accurate depictions of her interactions with John Doe. She explained that she was angry because she thought John Doe was a nice guy and that he liked her. She described, “and then I realized he’s just another douchy frat dude.” 63. At no point was Jane Doe’s voluntary use of alcohol taken into consideration with respect to the Charges. 18 CU Boulder’s disparate and Case 1:14-cv-03027-RM-MEH Document 19 Filed 11/21/14 USDC Colorado Page 19 of 53 discriminatory treatment of John Doe with respect to the use of alcohol on the Evening of September 26 is evident in: (i) (ii) 64. CU Boulder’s written “Notice of Investigation,” dated October 14, 2013, which states that John Doe was “under the influence of alcohol on this night although [John Doe] [is] not of a legal drinking age,” without any mention of Jane Doe’s admitted use of alcohol on the same evening; and CU Boulder’s ignorance of Jane Doe’s own violation of CU Boulder policies (Student Conduct Code Policies & Procedures, Sections F(24), M(2) and M(3)(a)), which according to CU Boulder policies results in a disciplinary sanction of suspension at a minimum. See Student Conduct Code Policies & Procedures, Sections F(24). Jane Doe did not willingly participate in the student conduct process and it took CU Boulder officials five times over the course of one month to reach Jane Doe before she agreed to meet in person. Notwithstanding the gravity of the charges being mounted against John Doe and the fact that his educational future was hanging in the balance, Jane Doe was not penalized for her failure to cooperate or participate in the conduct process in violation of the Code. CU Boulder’s extension of time and accommodation made to Jane Doe was on the basis of her gender. 65. CU Boulder failed to seriously investigate the “deleted text messages” that Jane Doe claims to have sent to friends on the Evening of September 26 to ask for help. The existence or absence of such text messages should have been used to corroborate or discredit Jane Doe’s claims. Instead, investigators dismissed the text message evidence based on the claim that Jane Doe’s demeanor in the days after the 19 Case 1:14-cv-03027-RM-MEH Document 19 Filed 11/21/14 USDC Colorado Page 20 of 53 alleged incident are not relevant to Jane Doe’s credibility. The decision to exclude evidence of text messages foreclosed John Doe from the opportunity to adequately defend the allegations against him and provided a slanted view of the facts in favor of the complainant. 66. CU Boulder failed to conduct an adequate or thorough investigation of Jane Doe’s claims of sexual misconduct by ignoring key witnesses who possessed relevant (and in some instances, critical) information about the claims. John Doe advised CU Boulder that there were several witnesses, including a few of his fraternity brothers, who were present at the party that evening to observe Jane Doe’s interactions with John Doe and demonstrated subjective and objective consent. CU Boulder failed to interview such witnesses prior to the Hearing. 67. While CU Boulder policies allow conduct officers the discretion to determine relevance and what questions, if any, to pose to potential witnesses (Student Conduct Code Policies & Procedures, Section H(4), p. 6), CU Boulder’s decision to ignore John Doe’s advisement of the existence of pertinent witnesses who could attest to an objective standard of consent was also arbitrary. John Doe’s witnesses were ignored in order to protect a false, anti-male biased narrative. 68. Instead, CU Boulder investigators only interviewed three witnesses with respect to Jane Doe’s complaint. One witness was a fellow fraternity brother to John 20 Case 1:14-cv-03027-RM-MEH Document 19 Filed 11/21/14 USDC Colorado Page 21 of 53 Doe who corroborated that John Doe asked him for a condom on the Evening of September 26 and chatted with him for about 20 minutes before he returned to his room where Jane Doe was waiting. 69. The second witness was resident hall director Stephanie Keith who described that Jane Doe was very “business-like” and seemed more focused on timing when she approached her to discuss making a potential report. Ms. Keith stated that Jane Doe asked how long the reporting process would take because she did not want to miss her afternoon class. The third witness was resident assistant Irene Won who recounted that Jane Doe was in a communal area of the dormitory “eating pizza and just hanging out” when she spotted Ms. Won. It was at that time that she approached Ms. Won and asked “in hypothetical terms” what would happen if she was “hypothetically, being pressured and forced into having sex.” Ms. Won referred Jane Doe to resident hall director Stephanie Keith. 70. During the investigation process, it was revealed that Jane Doe had lied several times to CU Boulder and the police when she first made her report of nonconsensual sexual intercourse, including, without limitation, (i) she did, in fact, have John Doe’s contact information because she text messaged with him following the incident to plan something with him; (ii) she was not forced to stay in John Doe’s room that night; 21 Case 1:14-cv-03027-RM-MEH Document 19 Filed 11/21/14 USDC Colorado Page 22 of 53 (iii) John Doe did, in fact, walk her home to her dorm room the morning after the Evening of September 26; and (iv) she described to the police that she resisted John Doe taking off her pants, but, in fact, she did not resist. 71. John Doe attempted to show that Jane Doe had serious credibility issues going to her ability to make truthful statements about the Evening of September 26 by: (i) pointing to Jane Doe’s lies to the Boulder Police Department; (ii) submitting text messages between Jane Doe and John Doe; and (iii) submitting a photo of Jane Doe straddling John Doe on the couch while kissing at the house party on September 26. 72. Credibility and character of the accuser is critical when the accused is faced with a charge that amounts to nothing more than “he said, she said”. However, CU Boulder failed to perform any reasonable credibility assessment of Jane Doe. CU Boulder was dismissive of John Doe’s evidence and provided its own explanations and justifications in favor of Jane Doe. Bizarrely, CU Boulder reasoned that Jane Doe’s admission that she lied to the police somehow mitigated the lies themselves because she was subsequently honest about having lied to CU Boulder. 73. Additionally, CU Boulder failed and refused to penalize Jane Doe for her violation of CU Boulder’s Sexual Harassment Policies after she admitted to 22 Case 1:14-cv-03027-RM-MEH Document 19 Filed 11/21/14 USDC Colorado Page 23 of 53 providing a false complaint and providing false information regarding the complaint against John Doe to CU Boulder officials and the Boulder Police Department. 74. The investigation report utilizes complainant-friendly language and fails to mention the existence of material evidence, namely, Jane Doe’s initiation of text messages to John Doe less than 24 hours after engaging in sexual activity whereby Jane Doe asks John Doe to party with her, and the fact that they explain away Jane Doe’s admission to lying to authorities throughout the complaint process. 75. The investigation report also mischaracterizes John Doe’s statements and willingness to participate in the student conduct process. For example, it states, “Respondent elected not to attend any in-person meetings or a phone interview, although he was provide the opportunity to do so.” To the contrary, John Doe’s failure to attend the initial in-person meeting was on account of scheduling conflicts. Instead of accommodating John Doe’s counsel’s schedule, CU Boulder refused to budge on its four-day deadline and, as a result, John Doe was unable to make any statements in his defense. The investigation report notes, “...[John Doe’s failure to attend the in-person meeting] deprive[d] investigators of the opportunity to ask detailed questions about his perspectives and assess his level of cooperation and forthrightness.” 23 Case 1:14-cv-03027-RM-MEH Document 19 Filed 11/21/14 USDC Colorado Page 24 of 53 76. Although the investigation report acknowledges that there was a witness to corroborate John Doe’s account of the evening and Jane Doe made false statements throughout the process, CU Boulder still concluded, “Respondent’s account is not as credible as Complainant’s. 77. Under the Code, the conduct officer shall make credibility determinations about “those providing information” to CU Boulder. Notwithstanding, CU Boulder failed to make a negative credibility assessment against Jane Doe despite her admission to making false statements to CU Boulder officials and the Boulder Police Department. 78. Upon information and belief, CU Boulder allowed Jane Doe to escape scrutiny and punishment under its policies and provided Jane Doe with favorable treatment throughout the conduct process on the basis of her gender. 79. Throughout the student conduct process, CU Boulder failed to advise John Doe of any other source of support. 80. CU Boulder ignored John Doe’s complaint of retaliation by Jane Doe in light of her statements that she wanted to get revenge against John Doe and wanted “the shit to be scared out of him” to Boulder Police Department Officer McNalley. There was absolutely no inquiry by CU Boulder on the issue of Jane Doe’s false 24 Case 1:14-cv-03027-RM-MEH Document 19 Filed 11/21/14 USDC Colorado Page 25 of 53 complaint of nonconsensual sex. Instead, Jane Doe’s false statement was received at face value. 81. Throughout the process, the Dean Gonzales claimed that she “could not find John Doe’s documents in his defense to the Charges,” notwithstanding that he personally handed the documents to her on December 17, 2013. 82. CU Boulder’s policies state that police investigation reports may be utilized during the conduct process. Student Conduct Code Policies & Procedures, Appendix 1 (D) (3), p. 16. Boulder Police Department investigation reports concluded that “there was no evidence to support the claim of sexual assault” and closed the case. 83. Notwithstanding such exculpatory evidence, CU Boulder proceeded to find John Doe responsible for two counts of Sexual Misconduct and meted out a disproportionate three-term suspension sanction. 84. According to the Sexual Harassment Policies, the standing review committee reviews the investigation report prior to CU Boulder’s final decision. The standing review committee has the power to, inter alia, consult with the investigator, consult with the parties, request further investigation, request that investigation be redone by another investigator, or adopt the report as-is. 25 Case 1:14-cv-03027-RM-MEH Document 19 Filed 11/21/14 USDC Colorado Page 26 of 53 85. Upon information and belief, CU Boulder did not provide the investigation report to a standing review committee for review, in violation of its Sexual Harassment Policies. 86. Upon information and belief, if CU Boulder did provide the investigation report to a standing review committee for review, the standing review committee failed to conduct a reasonable review of the report before adopting the entire report as-is. 87. Had the standing review committee conducted a reasonable review of the investigation report, it would have requested further investigation or requested that investigation be re-done by another investigator because the evidence could not reasonably or rationally lead to a finding of “responsibility” for two counts of Sexual Misconduct and a three-term suspension sanction. 88. The lengthy investigation ended one week before John Doe’s final exams, and the decision was rendered on the last day of final exams. John Doe was notified of the sanctions during the holidays on the day before Christmas Eve. 26 Case 1:14-cv-03027-RM-MEH Document 19 Filed 11/21/14 USDC Colorado Page 27 of 53 V. Sanctions Are Disproportionately Severe John Doe’s three-term suspension sanction was unwarranted and 89. disproportionate in light of the fact that: (i) Jane Doe admitted to lying several times to CU Boulder and Boulder Police Department about pertinent facts related to her claims, including the fact that she was not forced to stay in John Doe’s room that night; (ii) John Doe was a student in good standing; (iii) had no prior on his disciplinary record; (iv) John Doe presented exculpatory text messages between himself and Jane Doe, witnesses to testify to objective and subjective consent, and there were exculpatory investigation reports from the Boulder Police Department; (v) there are no reported precedents in which a student found responsible for similar charges received such a harsh penalty; and (vi) the sanction of suspension was inexplicably harsh considering that the sanctioning parameters for the Charges range from warning to expulsion. VI. 90. Appeal of the Sanction Following John Doe’s receipt of the Decision and Sanctions, John Doe filed his appeal to Vice Chancellor Deb Coffin on the grounds that the findings in the investigation report were contradictory in that Jane Doe lacked credibility, demonstrated unscrupulous motives, and the fact that John Doe’s own defense was 27 Case 1:14-cv-03027-RM-MEH Document 19 Filed 11/21/14 USDC Colorado Page 28 of 53 prejudiced by his inability to actively participate in the conduct process, and CU Boulder’s mischaracterizations of John Doe’s statements and the evidence presented. 91. On February 21, 2014, Vice Chancellor Coffin rubber-stamped the Decision and Sanctions and denied John Doe’s appeal. VII. John Doe’s Entire Future is Severely Damaged by CU Boulder’s Actions 92. As a result of CU Boulder’s finding of “responsible,” John Doe was sanctioned with a three-term suspension, which effectively banned John Doe from campus immediately, and prevents him from completing his educational career at CU Boulder and/or impedes his ability to complete his educational career elsewhere. 93. As a result of the foregoing, John Doe’s emotional stability has been extremely compromised, and he has had to undergo regular counseling and psychological therapy as a result. 94. As a result of the, John Doe’s future career prospects have been ruined and his overall economic future is completely compromised. 95. Currently, John Doe’s future educational career is at a standstill as a result his three-term suspension; he is unable to complete his studies at CU Boulder and any effort to transfer to another college of equal caliber has been severely compromised by the negative impact of his three-term suspension. 28 Case 1:14-cv-03027-RM-MEH Document 19 Filed 11/21/14 USDC Colorado Page 29 of 53 96. John Doe’s academic and disciplinary record is irrevocably and irreversibly tarnished and will not withstand scrutiny by any transfer to another educational institution, including graduate studies. 97. CU Boulder failed and refused to make an “assessment or refund of tuition and fees and/or Housing and Dining Services room and board costs” as of the date of John Doe’s suspension or expulsion, despite due demand, in violation of the Code. 98. As a result of CU Boulder’s actions, John Doe’s parents’ financial resources of over $100,000 used to provide John Doe with an education at an esteemed four-year institution have been squandered. 99. Any attempt to move on with his future in the face of CU Boulder’s arbitrary and capricious decisions will be met with great resistance and little success; it is a known fact that the likelihood of his acceptance to a graduate institution of high caliber is reduced in light of the high number of applicants and stiff competition. AS AND FOR THE FIRST CAUSE OF ACTION Violation of Title IX of the Education Amendments of 1972 100. John Doe repeats and realleges each and every allegation hereinabove as if fully set forth herein. 101. Title IX of the Education Amendments of 1972 provides, in relevant part, that: 29 Case 1:14-cv-03027-RM-MEH Document 19 Filed 11/21/14 USDC Colorado Page 30 of 53 No person in the United States 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. 102. Title IX of the Education Amendments of 1972 applies to an entire school or institution if any part of that school receives federal funds; hence, athletic programs are subject to Title IX of the Education Amendments of 1972, even though there is very little direct federal funding of school sports. 103. Upon information and belief, CU Boulder receives over $351,000,000 in federal funding for research and development. 104. Both the Department of Education and the Department of Justice have promulgated regulations under Title IX that require a school to “adopt and publish grievance procedures providing for the prompt and equitable resolution of student... complaints alleging any action which would be prohibited by” Title IX or regulations thereunder. 34 C.F.R. § 106.8(b) (Dep’t of Education); 28 C.F.R. § 54.135(b) (Dep’t of Justice) (emphasis added). Such prohibited actions include all forms of sexual harassment, including sexual intercourse, sexual assault, and rape.2 See generally U.S. Dep’t of Education, Office for Civil Rights, Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties -- Title IX (2001) at 19-20, 21 & nn.98-101. 2 30 Case 1:14-cv-03027-RM-MEH Document 19 Filed 11/21/14 USDC Colorado Page 31 of 53 105. The procedures adopted by a school covered by Title IX must not only “ensure the Title IX rights of the complainant,” but must also “accord[] due process to both parties involved...”3 106. The “prompt and equitable” procedures that a school must implement to “accord due process to both parties involved” must include, at a minimum:  “Notice . . . of the procedure, including where complaints may be filed”;  “Application of the procedure to complaints alleging [sexual] harassment...”;  “Adequate, reliable, and impartial investigation of complaints, including the opportunity to present witnesses and other evidence”;  “Designated and reasonably prompt timeframes for the major stages of the complaint process”; and  “Notice to the parties of the outcome of the complaint...”4 107. A school also has an obligation under Title IX to make sure that all employees involved in the conduct of the procedures have “adequate training as to what conduct constitutes sexual harassment, which includes “alleged sexual assaults.” 5 3 Id. at 22 (emphasis added). 4 Id. at 20. 5 Id. at 21. 31 Case 1:14-cv-03027-RM-MEH Document 19 Filed 11/21/14 USDC Colorado Page 32 of 53 108. Upon information and belief, CU Boulder is currently under investigation by the U.S. Department of Education regarding its mishandling of sexual assault allegations. 109. Based on the foregoing, supra, at ¶¶ 50-88, CU Boulder has deprived John Doe, on the basis of his sex, of his rights to due process and equal protection through the improper administration of and/or the existence, in its current state, of CU Boulder’s guidelines and regulations. 110. Based on the foregoing, supra, at ¶¶ 50-88, CU Boulder shut John Doe out of the CU Boulder community without allowing John Doe an adequate opportunity to review and contest the specific allegations, and without conducting a full and fair investigation to corroborate the Jane Doe’s false charges, and before holding a hearing on the charges, CU Boulder treated him as “guilty.” 111. Based on the foregoing, supra, at ¶¶ 50-88, CU Boulder conducted its investigation of Jane Doe’s allegations in a manner that was biased against the male being accused. Based on CU Boulder investigators’ questions and treatment of John Doe, the investigation was slanted in favor of Jane Doe and took her statements at face-value, while mischaracterizing John Doe’s statements. 112. Throughout the student conduct process, CU Boulder officials treated John Doe as “guilty before proven innocent.” 32 Case 1:14-cv-03027-RM-MEH Document 19 Filed 11/21/14 USDC Colorado Page 33 of 53 113. Upon information and belief, CU Boulder erroneously placed the entire burden on John Doe to prove his innocence, instead of setting forth competent evidence to demonstrate how John Doe allegedly engaged in non-consensual sex with Jane Doe. 114. At all times, John Doe was shut out of the CU Boulder community without allowing John Doe an adequate opportunity to review and contest the specific allegations, and without conducting a full and fair investigation to corroborate the false charges against him. 115. CU Boulder’s failure to interview critical witnesses in support of John Doe’s defense demonstrates CU Boulder’s favorable treatment of Jane Doe on the basis of her gender. 116. CU Boulder has created an environment in which an accused male student is effectively denied fundamental due process by being prosecuted through the conduct process under the cloud of a presumption of guilt. Such a one-sided process deprived John Doe, as a male student, of educational opportunities at CU Boulder on the basis of his sex. 117. CU Boulder failed and/or refused to follow its own policies and procedures for John Doe as the male accused of sexual assault when it found John Doe responsible for sexual assault in the face of its outright failure and refusal to 33 Case 1:14-cv-03027-RM-MEH Document 19 Filed 11/21/14 USDC Colorado Page 34 of 53 interview additional witnesses in support of John Doe’s defense and failure to present any evidence in support of the claim that Jane Doe allegedly engaged in nonconsensual sex with John Doe, except for Jane Doe’s say-so. 118. CU Boulder failed and/or refused to adhere to its own policies and procedures when it failed to follow up on John Doe’s concerns about Jane Doe’s credibility and the credibility of her complaint about the Evening of September 26. 119. CU Boulder’s policies effectuate a denial of due process for the student population, especially the male student population, in their current state because they are set up to encourage and facilitate the reporting of false reports of sexual misconduct and/or other grievances without any recourse for the falsely accused. 120. Based on the foregoing, supra, at ¶¶ 89-91, CU Boulder imposed sanctions on John Doe that were disproportionate to the severity of the charges levied against him and without any consideration of his clean disciplinary record at CU Boulder, and without providing any written summary for the basis therefor. 121. Based on the foregoing, supra, at ¶¶ 50-88, CU Boulder’s guidelines and regulations disproportionately affect the male student population of the CU Boulder community as a result of the higher incidence of female complainants of sexual misconduct against male complainants of sexual misconduct. 34 Case 1:14-cv-03027-RM-MEH Document 19 Filed 11/21/14 USDC Colorado Page 35 of 53 122. Based on the foregoing, supra, at ¶¶ 50-88, male respondents in sexual misconduct cases at CU Boulder are discriminated against solely on the basis of sex. They are invariably found guilty, regardless of the evidence, or lack thereof. 123. As a result of the foregoing, John Doe is entitled to damages in an amount to be determined at trial, plus prejudgment interest, attorneys’ fees, expenses, costs and disbursements. AS AND FOR THE SECOND CAUSE OF ACTION Violations of Title IX OCR Rules 124. John Doe repeats and realleges each and every allegation hereinabove as if fully set forth herein. 125. The United States Department of Education Office for Civil Rights (“OCR”) requires colleges that receive federal funds to adhere to Title IX of the Education Amendments of 1972, which prohibits discrimination on the basis of sex. 126. OCR requires colleges to ensure that employees “likely to witness or receive reports of sexual harassment and violence” receiving training on practical information about how to identify and report sexual harassment and violence. 127. OCR requires colleges to process complaints of sexual misconduct in accordance with its established procedures. 128. OCR requires colleges to engage in “prompt, thorough, and impartial” investigations of allegations of sexual misconduct. 35 Case 1:14-cv-03027-RM-MEH Document 19 Filed 11/21/14 USDC Colorado Page 36 of 53 129. OCR requires colleges to designate a Title IX coordinator to oversee all Title IX complaints and identify and address any patterns or systemic problems that arise during the review of such complaints. 130. OCR requires colleges to ensure that their “Title IX coordinators have adequate training on what constitutes sexual harassment, including sexual violence, and that they understand how the [college’s] grievance procedures operate.” 131. OCR requires colleges to utilize adequate, reliable, and impartial investigation of complaints, including an equal opportunity for both parties to present relevant witnesses and other evidence. 132. OCR requires colleges to afford to the complainant and the accused student similar and timely access to any information that will be used at the hearing. 133. OCR requires colleges to maintain documentation of all proceedings, which includes written findings of facts, transcripts or audio recordings. 134. OCR requires colleges to ensure that all employees are trained with respect to applicable confidentiality requirements. 135. OCR requires that all colleges “must provide due process to the alleged perpetrator.” 136. Based on the foregoing, supra, at ¶¶ 50-88, CU Boulder has deprived John Doe, on the basis of his sex, of his rights to due process and equal protection 36 Case 1:14-cv-03027-RM-MEH Document 19 Filed 11/21/14 USDC Colorado Page 37 of 53 through the improper administration of and/or the existence, in its current state, of CU Boulder’s guidelines and regulations. 137. CU Boulder failed and/or refused to follow its own policies and procedures for John Doe as the male accused of sexual assault when it found John Doe responsible for sexual assault in the face of its outright failure and refusal to interview additional witnesses in support of John Doe’s defense and failure to present any evidence in support of the claim that Jane Doe allegedly engaged in nonconsensual sex with John Doe, except for Jane Doe’s say-so. 138. CU Boulder failed and/or refused to adhere to its own policies and procedures when it failed to follow up on John Doe’s concerns about Jane Doe’s credibility and the credibility of her complaint about the Evening of September 26. 139. CU Boulder has created an environment where an accused male student is fundamentally denied due process by being prosecuted through the conduct process under a presumption of guilt. Such a one-sided process deprived John Doe, as a male student, of educational opportunities at CU Boulder on the basis of his sex. 140. CU Boulder’s stated policies and procedures, together with its violations thereof only with respect to John Doe as the male accused of sexual assault, demonstrates CU Boulder’s gender-biased practices with respect to males accused of sexual assault at CU Boulder. 37 Case 1:14-cv-03027-RM-MEH Document 19 Filed 11/21/14 USDC Colorado Page 38 of 53 141. As a result of the foregoing, John Doe is entitled to damages in an amount to be determined at trial, plus prejudgment interest, attorneys’ fees, expenses, costs and disbursements. AS AND FOR THE THIRD CAUSE OF ACTION Breach of Contract 142. John Doe repeats and realleges each and every allegation hereinabove as if fully set forth herein. 143. Based on the aforementioned facts and circumstances, CU Boulder breached express and/or implied agreement(s) with John Doe. 144. CU Boulder committed several breaches of its agreements with John Doe, including, without limitation: 145. Regarding student participation in the student conduct process, the Code states: Students have a duty to cooperate and discuss the incident with an investigator and conduct officer over the telephone or in person, adhere to stated deadlines, attend scheduled meetings, and participate in all proceedings. Code, “Duties of Students,” p. 2. Students and university employees are expected to participate as reasonably requested in conduct proceedings as a responsibility of membership in the university community and failure to do so may result in disciplinary action. Code, “Office of Student Conduct Procedures,” p. 6. 38 Case 1:14-cv-03027-RM-MEH Document 19 Filed 11/21/14 USDC Colorado Page 39 of 53 146. Notwithstanding the gravity of the charges being mounted against John Doe and the fact that his educational future was hanging in the balance, Jane Doe was not penalized for her failure to cooperate or participate in the conduct process in violation of the Code. 147. With respect to credibility determinations, the Code states: The conduct officer will make determinations about the facts and the credibility of those providing information and determine whether the student has violated the Student Conduct Code. Code, “Office of Student Conduct Procedures,” p. 6. 148. However, CU Boulder failed to perform any logical credibility assessment of Jane Doe. CU Boulder was dismissive of John Doe’s evidence and provided its own explanations and justifications in favor of Jane Doe. Incredibly, CU Boulder reasoned that Jane Doe’s admission that she lied to the police somehow mitigated the lies themselves because she was subsequently honest about having lied to CU Boulder. 149. CU Boulder’s policies on underage drinking states: In the case of a student who is found responsible via the student conduct process to have endangered the health, safety or welfare of an individual through the provision of alcohol, the minimum disciplinary sanction shall be suspension. Code, “Prohibited Student Conduct,” p. 3. 39 Case 1:14-cv-03027-RM-MEH Document 19 Filed 11/21/14 USDC Colorado Page 40 of 53 On the Boulder campus, students may consume alcohol only if they are of legal drinking age and do so in designated areas. Students should consult with Housing and Dining Services or other facility supervisors to determine where the designated areas are located. Drinking by underage students or in nondesignated areas on campus violates the Student Conduct Code and Housing and Dining Services policies (for Housing and Dining Services policies see Residence Hall Policies at www.colorado.edu/studentaffairs/studentconduct/code.html.) Code, “Related Information,” p. 12. The legal drinking age in Colorado is 21. In a residence hall, students of legal age may possess and consume alcoholic beverages only in their rooms with the door closed. Drinking by underage students is a violation of state law and residence hall policy. Residence Hall Policies, p. 5. 150. CU Boulder only charged John Doe with underage drinking violations and failed to penalize Jane Doe for her admitted use of alcohol on the Evening of September 26. Upon information and belief, Jane Doe was not of legal drinking age during the time. 151. CU Boulder’s Sexual Harassment Policy and Procedures state, among other things: The University does not discriminate on the basis of race, color, national origin, sex age, disability, creed, religion, sexual orientation, or veteran status in admission and access to, and treatment and employment in, its educational programs and activities. Sexual Harassment Policy and Procedures, p.1. 40 Case 1:14-cv-03027-RM-MEH Document 19 Filed 11/21/14 USDC Colorado Page 41 of 53 152. Based on the foregoing, supra, at ¶¶ 48-85, CU Boulder conducted its investigation of Jane Doe’s allegations in a manner that was biased against the male being accused. Based on CU Boulder investigators’ questions and treatment of John Doe, the investigation was slanted in favor of Jane Doe and took her statements at face-value, while mischaracterizing John Doe’s statements. CU Boulder engaged in gender discrimination against John Doe. 153. The complainant and the respondent both have the following rights with respect to allegations of sexual misconduct: Receive written notice of the report or complaint, including a statement of the allegations, as soon after the commencement of the investigation as is practicable and to the extent permitted by law; Present relevant information to the investigator(s); and Receive, at the conclusion of the investigation and appropriate review, a copy of the investigator’s report, to the extent permitted by law. Sexual Harassment Policy and Procedures, p.3. 154. CU Boulder failed and refused to provide John Doe with a copy of the police reports or Jane Doe’s written statement prior to requesting John Doe’s defense to the Charges. Essentially, John Doe was being required to submit a response and prepare his defense before he has even been allowed to review the details of the allegations being made against him. 41 Case 1:14-cv-03027-RM-MEH Document 19 Filed 11/21/14 USDC Colorado Page 42 of 53 155. CU Boulder investigators were dismissive of relevant text message evidence between John Doe and Jane Doe less than 24 hours after their sexual activity. CU Boulder’s decision to exclude evidence of text messages foreclosed John Doe from the opportunity to adequately defend the allegations against him and provided a slanted view of the facts in favor of the complainant. 156. Pursuant to CU Boulder’s Sexual Harassment Policy and Procedures, the committee in charge of determining responsibility for charges of sexual misconduct shall “have received appropriate training” and has the power to: …[c]onsult with the investigator, consult with the parties, request that further investigation be done by the same or another investigator, or request that the investigation be conducted again by another investigator. The standing review committee may adopt the investigator’s report as its own or may prepare a separate report based on the findings of the investigation. The standing review committee may not, however, conduct its own investigation or hearing. Once the standing review committee has completed its review, the investigator shall send the final report to the complainant and the respondent, to the extent permitted by law. Sexual Harassment Policy and Procedures, p.3. 157. Upon information and belief, CU Boulder did not provide the investigation report to a standing review committee for review, in violation of its Sexual Harassment Policies. 158. Additionally, CU Boulder’s Sexual Harassment Policy and Procedures states that “It also is a violation of this policy for anyone acting knowingly or 42 Case 1:14-cv-03027-RM-MEH Document 19 Filed 11/21/14 USDC Colorado Page 43 of 53 recklessly either to make a false complaint of sexual harassment or to provide false information regarding a complaint.” Sexual Harassment Policies, p.1. 159. CU Boulder failed and/or refused to penalize Jane Doe for her violation of CU Boulder’s Sexual Harassment Policies after she admitted to providing a false complaint and providing false information regarding the complaint against John Doe to CU Boulder officials and the Boulder Police Department. 160. Under the Code, a student who is suspended or expelled from the university is entitled to “assessment or refund of tuition and fees and/or Housing and Dining Services room and board costs” as of the date of suspension or expulsion. Code, p. 11. 161. CU Boulder failed and/or refused to make an “assessment or refund of tuition and fees and/or Housing and Dining Services room and board costs” as of the date of John Doe’s suspension or expulsion, despite due demand, in violation of the Code. 162. CU Boulder failed to conduct a timely investigation of the Charges and failed to timely bring the case to a close in violation of Student Conduct Code Policies & Procedures, Appendix 1 (D) (1), p. 15. 163. As a direct, reasonable and foreseeable consequence of these breaches, John Doe sustained tremendous damages, including, without limitation, emotional 43 Case 1:14-cv-03027-RM-MEH Document 19 Filed 11/21/14 USDC Colorado Page 44 of 53 distress, economic injuries, the inability to complete his studies at CU Boulder or transfer to another college of equal caliber, and other direct and consequential damages. 164. John Doe is entitled to recover damages for CU Boulder’s breach of the express and/or implied contractual obligations described above. 165. As a direct and foreseeable consequence of these breaches, John Doe sustained tremendous damages, including, without limitation, emotional distress, economic injuries, the inability to complete his studies at CU Boulder or transfer to another college of equal caliber, and other direct and consequential damages. 166. As a result of the foregoing, John Doe is entitled to damages in an amount to be determined at trial, plus prejudgment interest, attorneys’ fees, expenses, costs and disbursements. 44 Case 1:14-cv-03027-RM-MEH Document 19 Filed 11/21/14 USDC Colorado Page 45 of 53 AS AND FOR THE FOURTH CAUSE OF ACTION Covenant of Good Faith and Fair Dealing 167. John Doe repeats and realleges each and every allegation hereinabove as if fully set forth herein. 168. Based on the aforementioned facts and circumstances, CU Boulder breached and violated the covenant of good faith and fair dealing implied in the agreement(s) with John Doe by meting out a disproportionately severe three-term suspension sanction against John Doe, notwithstanding the lack of evidence in support of Jane Doe’s claim of non-consensual sexual intercourse and in light of Jane Doe’s demonstrated motives to make a false complaint and her admission to making false statements to CU Boulder and the Boulder Police Department. The sanction is also disproportionate considering that John Doe had no prior history of misconduct. 169. As a direct, reasonable and foreseeable consequence of these breaches, John Doe sustained tremendous damages, including, without limitation, emotional distress, economic injuries, the inability to complete his studies at CU Boulder or transfer to another college of equal caliber, and other direct and consequential damages. 170. John Doe is entitled to recover damages for CU Boulder’s breach of the express and/or implied contractual obligations described above. 45 Case 1:14-cv-03027-RM-MEH Document 19 Filed 11/21/14 USDC Colorado Page 46 of 53 171. As a result of the foregoing, John Doe is entitled to damages in an amount to be determined at trial, plus prejudgment interest, attorneys’ fees, expenses, costs and disbursements. AS AND FOR THE FIFTH CAUSE OF ACTION Estoppel and Reliance 172. John Doe repeats and realleges each and every allegation hereinabove as if fully set forth herein. 173. CU Boulder’s various policies constitute representations and promises that CU Boulder should have reasonably expected to induce action or forbearance by John Doe. 174. CU Boulder expected or should have reasonably expected John Doe to accept its offer of admission, incur tuition and fees expenses, and choose not to attend other colleges based on its express and implied promises that CU Boulder would not tolerate, and John Doe would not suffer, harassment by fellow students and would not deny John Doe his procedural rights should he be accused of a violation of CU Boulder’s policies. 175. John Doe relied to his detriment on these express and implied promises and representations made by CU Boulder. 176. Based on the foregoing, CU Boulder is liable to John Doe based on Estoppel. 46 Case 1:14-cv-03027-RM-MEH Document 19 Filed 11/21/14 USDC Colorado Page 47 of 53 177. As a direct, reasonable and foreseeable consequence of these breaches, John Doe sustained tremendous damages, including, without limitation, emotional distress, economic injuries, the inability to complete his studies at CU Boulder or transfer to another college of equal caliber, and other direct and consequential damages. 178. As a result of the foregoing, John Doe is entitled to damages in an amount to be determined at trial, plus prejudgment interest, attorneys’ fees, expenses, costs and disbursements. AS AND FOR THE SIXTH CAUSE OF ACTION Negligence 179. John Doe repeats and realleges each and every allegation hereinabove as if fully set forth herein. 180. CU Boulder owed duties of care to John Doe. Such duties included, without limitation, a duty of reasonable care in the conduct and investigation of the allegations of sexual misconduct being lodged against him. 181. Based on the foregoing, supra, at ¶¶ 48-85, CU Boulder breached its duties owed to John Doe. 182. Upon information and belief, such breaches were made with the aid of and/or due to negligence committed by CU Boulder officials. 47 Case 1:14-cv-03027-RM-MEH Document 19 Filed 11/21/14 USDC Colorado Page 48 of 53 183. As a direct, reasonable and foreseeable consequence of these breaches, John Doe sustained tremendous damages, including, without limitation, emotional distress, economic injuries, the inability to complete his studies at CU Boulder or transfer to another college of equal caliber, and other direct and consequential damages. 184. As a result of the foregoing, John Doe is entitled to damages in an amount to be determined at trial, plus prejudgment interest, attorneys’ fees, expenses, costs and disbursements. AS AND FOR THE SEVENTH CAUSE OF ACTION Declaratory Judgment 185. John Doe repeats and realleges each and every allegation hereinabove as if fully set forth herein. 186. CU Boulder has committed numerous violations of the Parties’ contracts and of federal and state law. 187. John Doe’s education and future has been severely compromised and damaged. Without appropriate redress, the unfair outcome of the Hearing involving Jane Doe will continue to cause irreversible damages to John Doe’s educational career and future employment prospects, with no end in sight. 48 Case 1:14-cv-03027-RM-MEH Document 19 Filed 11/21/14 USDC Colorado Page 49 of 53 188. As a result of the foregoing, there exists a justiciable controversy between the Parties with respect to the outcome, permanency, and future handling of John Doe’s formal student record at CU Boulder. 189. By reason of the foregoing, John Doe requests, pursuant to 28 U.S.C. § 2201, a declaration that: (i) the outcome and findings made by CU Boulder at John Doe’s Hearings be reversed; (ii) John Doe’s reputation be restored; (iii) John Doe’s disciplinary record be expunged; (iv) the record of John Doe’s three-term suspension from CU Boulder be removed from his education file; (v) any record of John Doe’s Hearings be permanently destroyed; and (vi) CU Boulder’s rules, regulations and guidelines are unconstitutional as applied. PRAYER FOR RELIEF WHEREFORE, for the foregoing reasons, John Doe demands judgment against CU Boulder as follows: (i) on the first cause of action for violation of Title IX of the Education Amendments of 1972, a judgment awarding John Doe damages in an amount to be determined at trial, including, without limitation, emotional distress, economic injuries, the inability to complete his studies at CU Boulder or transfer to another college of equal caliber, and other direct and consequential damages, plus prejudgment interest, attorneys’ fees, expenses, costs and disbursements; (ii) on the second cause of action for violation of OCR rules, a judgment awarding John Doe damages in an amount to be determined at trial, including, without limitation, emotional distress, economic injuries, the inability to complete his studies at CU Boulder or transfer to 49 Case 1:14-cv-03027-RM-MEH Document 19 Filed 11/21/14 USDC Colorado Page 50 of 53 another college of equal caliber, and other direct and consequential damages, plus prejudgment interest, attorneys’ fees, expenses, costs and disbursements; (iii) on the third cause of action for breach of contract, a judgment awarding John Doe damages in an amount to be determined at trial, including, without limitation, emotional distress, economic injuries, the inability to complete his studies at CU Boulder or transfer to another college of equal caliber, and other direct and consequential damages, plus prejudgment interest, attorneys’ fees, expenses, costs and disbursements; (iv) on the fourth cause of action for breach of the covenant of good faith and fair dealing, a judgment awarding John Doe damages in an amount to be determined at trial, including, without limitation, emotional distress, economic injuries, the inability to complete his studies at CU Boulder or transfer to another college of equal caliber, and other direct and consequential damages, plus prejudgment interest, attorneys’ fees, expenses, costs and disbursements; (v) on the fifth cause of action for estoppel and reliance, a judgment awarding John Doe damages in an amount to be determined at trial, including, without limitation, emotional distress, economic injuries, the inability to complete his studies at CU Boulder or transfer to another college of equal caliber, and other direct and consequential damages, plus prejudgment interest, attorneys’ fees, expenses, costs and disbursements; (vi) on the sixth cause of action for negligence, a judgment awarding John Doe damages in an amount to be determined at trial, including, without limitation, emotional distress, economic injuries, the inability to complete his studies at CU Boulder or transfer to another college of equal caliber, and other direct and consequential damages, plus prejudgment interest, attorneys’ fees, expenses, costs and disbursements; (vii) on the seventh cause of action for a declaratory judgment pursuant to 28 U.S.C. § 2201, a judicial declaration that: (i) the outcome and 50 Case 1:14-cv-03027-RM-MEH Document 19 Filed 11/21/14 USDC Colorado Page 51 of 53 findings made by CU Boulder at John Doe’s Hearings be reversed; (ii) John Doe’s reputation be restored; (iii) John Doe’s disciplinary record be expunged; (iv) the record of John Doe’s deferred suspension from CU Boulder be removed from his education file; (v) any record of John Doe’s Hearings be permanently destroyed; and (vi) CU Boulder’s rules, regulations and guidelines are unconstitutional as applied; and (viii) awarding John Doe such other and further relief as the Court deems just, equitable and proper. Dated: New York, New York November 21, 2014 Respectfully submitted, By:_s/Michael Mirabella Michael Mirabella, Esq. Michael Mirabella P.C. 1129 Cherokee St. Denver, Colorado 80204 (303) 381-3408 mmirabella@mbellalaw.com -andBy: s/Andrew T. Miltenberg Andrew T. Miltenberg, Esq. Kimberly C. Lau, Esq. Nesenoff & Miltenberg, LLP 363 Seventh Avenue, Fifth Floor New York, New York 10001 (212) 736-4500 klau@nmllplaw.com amiltenberg@nmllplaw.com Attorneys for Plaintiff John Doe 51 Case 1:14-cv-03027-RM-MEH Document 19 Filed 11/21/14 USDC Colorado Page 52 of 53 JURY DEMAND John Doe herein demands a trial by jury of all triable issues in the present matter. Dated: New York, New York November 21, 2014 Respectfully submitted, By:_s/Michael Mirabella Michael Mirabella, Esq. Michael Mirabella P.C. 1129 Cherokee St. Denver, Colorado 80204 (303) 381-3408 mmirabella@mbellalaw.com -and- By: s/Andrew T. Miltenberg Andrew T. Miltenberg, Esq. Kimberly C. Lau, Esq. Nesenoff & Miltenberg, LLP 363 Seventh Avenue, Fifth Floor New York, New York 10001 (212) 736-4500 amiltenberg@nmllplaw.com klau@nmllplaw.com Attorneys for Plaintiff John Doe 52 Case 1:14-cv-03027-RM-MEH Document 19 Filed 11/21/14 USDC Colorado Page 53 of 53 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing AMENDED COMPLAINT (REDACTED) has been electronically filed via CM/ECF this 21ST day of November, 2014, and served upon the following: David P. Temple Erica M. Weston Office of University Counsel 1800 Grant Street, Suite 700 Denver, CO 80203 303-860-5691 (ph) David.Temple@cu.edu Counsel for Defendant s/ Traci L. Pink Original signatures are maintained by the filing party and will be made available for inspection by other parties or the Court upon request. 53