Doe v. Stonehill College, Inc.

United States Court of Appeals
For the First Circuit
No. 21-1227
JOHN DOE,
Plaintiff, Appellant,
v.
STONEHILL COLLEGE, INC.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Leo T. Sorokin, U.S. District Judge]
Before
Gelpí, Lipez, and Howard,
Circuit Judges.
Timothy C. Woodcock, with whom Janna L. Gau and Eaton Peabody
were on brief, for appellant.
Christopher M. Iaquinto, with whom Philip J. Catanzano,
Timothy D. Andrea, and Holland & Knight LLP were on brief, for
appellee.
December 14, 2022
LIPEZ, Circuit Judge. John Doe was expelled from
Stonehill College for violating its sexual misconduct policy by
engaging in "nonconsensual sexual intercourse." Seeking redress
for what he alleges was an unfair and biased disciplinary process,
Doe filed suit against Stonehill asserting, inter alia, breach of
contract, sex discrimination in violation of Title IX, negligence,
and defamation. In a thoughtful decision, the district court
concluded that Doe's allegations were insufficient to support any
of his claims, and it dismissed his complaint in its entirety
pursuant to Federal Rule of Civil Procedure 12(b)(6). Doe v.
Stonehill Coll., Inc., No. 20-10468-LTS, 2021 WL 706228 (D. Mass.
Feb. 23, 2021), at *1. After review of the operative complaint
and related materials, we reverse dismissal of the breach-of-
contract claim but otherwise affirm the decision of the district
court.
I.
Because Doe appeals the dismissal of his complaint, "we
rehearse the facts as they appear in the plaintiff['s] complaint[]
(including documents incorporated by reference therein)."
Hochendoner v. Genzyme Corp., 823 F.3d 724, 728 (1st Cir. 2016).
Here, we consider Doe's complaint, Stonehill's sexual misconduct
policy -- titled "S1.14 Opposition to Sexual and Gender-Based
Misconduct and Interpersonal Violence" ("the policy" or "the
- 2 -
sexual misconduct policy"1) -- and documents produced as part of
Stonehill's investigation into Doe's conduct.2
A. The Relationship between John Doe and Jane Roe
Doe was admitted to Stonehill's class of 2021 in the
spring of 2017. He subsequently joined a Facebook group for his
class, where he met Jane Roe. They began to exchange messages
through Snapchat, text, and Facebook. Once on campus, they
continued to exchange messages and saw each other in person
numerous times.
In October 2017, the pair's relationship "grew to
include sexual intimacy." Compl. ¶ 35. The complaint describes
three sexual encounters prior to the incident at the heart of this
case. Each involved Doe "us[ing] his fingers to stimulate" Roe,
with Roe "physically communicat[ing] her consent by removing her
clothing, allowing him to fondle her and to rub her bare skin, and
by making her vagina more accessible to him." Id. ¶ 38; see also
id. ¶¶ 41, 44. In at least the first two encounters, Doe asked
Roe "if she wanted him to proceed" after he had already been
1 We refer to "the sexual misconduct policy" for simplicity,
although the policy has broader coverage.
2 The policy and the investigation documents were attached to
Doe's amended complaint, Stonehill's motion to dismiss, or Doe's
opposition, and they were considered by the district court with
the parties' acquiescence. See Stonehill Coll., 2021 WL 706228,
at *1 & n.2. Neither party challenges the authenticity of these
documents or argues that their consideration at this stage is
improper.
- 3 -
digitally stimulating her. Id. ¶¶ 38, 41. The first time, Roe
responded that she did. Roe subsequently asked Doe during that
first encounter to stop "because she had once been sexually
assaulted," and "Doe did stop as requested." Id. ¶ 40. In the
second encounter, when Doe asked for "permission to proceed," Roe
responded with "the same physical cues as on the first incident
and, when she wanted him to stop, she told him to stop, and he
did." Id. ¶ 41. In the third encounter, Doe "[a]gain" initiated
the sexual activity without first asking permission, "but [Roe]
presented the same physical cues from prior interactions that she
wanted him to proceed to digitally stimulate her." Id. ¶ 44.
B. The November 19th Incident
In the early morning hours of November 19, 2017, Doe
received a Snapchat message from Roe stating that she was scared
to walk back to her room alone from another dormitory, New Hall.
Doe offered to walk her back, and she accepted the offer. Doe
approached New Hall, but after receiving no response to a message
asking Roe about her location, he started to walk to Roe's
dormitory. He soon received another message from Roe saying that
she had been talking to an ex-boyfriend on the phone and that she
had made it back to her dorm. After Doe walked to Roe's room and
knocked on her door, she opened the door and invited him in.
Roe lay down on her bed, and Doe joined her. Roe then
got up, removed her t-shirt to switch to a tank top and a fleece
- 4 -
pullover, and returned to lay next to Doe. Doe began rubbing Roe's
back "and then moved his hand to her vagina and began to digitally
stimulate her." Compl. ¶ 58. Roe began to make moaning noises
and, when Doe stopped, "Roe rolled onto her back and made her
vagina more accessible to him," which Doe believed was intended
"to make it easier for him to continue stimulating her." Id. Doe
asked Roe if she liked what he was doing, and she did not respond
but "continued to make the moaning noises." Id. ¶ 59. Doe
continued to touch Roe, but after a short time he asked if she
wanted him to stop. Again, Roe did not respond. Instead, she
rolled over so her back was to Doe and "began breathing heavily."
Id. Doe asked if Roe was okay, and she responded "it's not you.
It's ok." Id. ¶¶ 62, 263(I). Roe then rolled over toward Doe,
and believing that she had gone to sleep, Doe left.
Later that morning, Doe received Snapchat messages from
Roe stating "things like, 'what just happened?'[,] 'that wasn't
consensual,' and[] 'that wasn't ok.'" Id. ¶ 65. Doe responded:
"Please forgive me for being a drunken idiot. I'd never want to
hurt you." In a second message, he wrote: "I'm so really sorry I
know I fucked up, I totally misread the situation. What can I do
to make it right?" Id. ¶ 70. Doe avers that neither message was
true because he "had not been drinking on the evening of November
18-19[,] [h]e was entirely sober," and he "did not mistake the
physical cues Jane Roe sent him." Id. ¶ 71. Rather, he claims
- 5 -
that he was puzzled and alarmed by her messages but accepted
responsibility to make Roe "feel better about herself" because he
knew that she "lacked self confidence and often felt vulnerable."
Id. ¶¶ 66, 68, 72.
The next day, November 20, Roe filed a sexual misconduct
complaint against Doe. Michael Labella, Director of Community
Standards at Stonehill, sent Doe a letter that same day informing
him that an incident report had been filed and that a no-contact
order was in place between him and Roe.
C. Roe's Complaint
On November 21, Roe met with Stonehill's Title IX
Coordinator3, Lily Krentzman, and provided a written statement.4
In her statement, Roe described Doe as "a boy on the football team
[with whom] I had previously made out sober twice in my room."
Compl. ¶ 95. With respect to her interaction with Doe on November
19, she described the incident as follows. When Doe arrived at
her room, "she told him that she was 'drunk' and 'tired' and did
3 Title IX prohibits sex discrimination by educational
institutions that receive federal financial assistance. See 20
U.S.C. § 1681(a). Such institutions are required to designate a
"Title IX Coordinator" to "coordinate [their] efforts to comply
with" the statute. 34 C.F.R. § 106.8(a).
4 Roe's statement was quoted, apparently in full, in a memo
to file prepared by Krentzman that was attached as an exhibit to
the final report submitted by Stonehill's Title IX investigators.
See infra. Krentzman reported that Roe had submitted her statement
in writing because "[s]he was too nervous to speak."
- 6 -
not 'want to do anything.'" Id. ¶ 96(D). She then told him that
she was going to bed, lay down, and closed her eyes. Doe tried to
kiss her, and she stated, again, "stop, I'm drunk. I don't want
to do anything with you." Id. ¶ 96(E)-(F). Doe started rubbing
her back and her thigh and Roe started to fall asleep, but she
described feeling "completely shocked, awake, startled, and[]
taken aback," when Doe "moved his hand down [her] thigh quickly
and brushed against [her] vagina." Id. ¶ 96(G)-(H). She pushed
Doe away and said "I don't want to," but "then he started fingering
[her]." Roe added that "she was 'too drunk to fight him off.'"
Id. ¶ 96(I)-(J). Roe stated that she told Doe three or four more
times to stop and that "I don't want this," but he continued. Id.
¶ 96(K). Eventually, Roe "jumped to some sort of last ditch effort
to save myself [and] started crying [and] hyperventilating" until
she pretended to fall asleep and Doe left. Id. ¶ 96(L).
The next day, November 22, Labella informed Doe by letter
that Stonehill would be investigating the incident and that Roe
alleged that Doe had violated a provision of the college's sexual
misconduct policy by engaging in "nonconsensual sexual
intercourse"5 with her. The letter noted that two Title IX
5 The policy defines nonconsensual sexual intercourse as "the
penetration, no matter how slight, of the vagina or anus with any
body part or object, or oral penetration by a sex organ of another
person, without the consent of the victim." Under the policy,
"[c]onsent" is defined in part to "mean[] informed, freely, and
voluntarily given agreement, communicated by clearly
- 7 -
investigators, David Bamford and Shayla Jordan, would be
conducting the investigation.
D. Stonehill's Investigation
Stonehill's sexual misconduct policy provides for an
investigative model encompassing the following steps:
1. A report of sexual misconduct is referred to the
college's Title IX investigators. The student accused
of sexual misconduct must be notified of the report.
2. Both the complainant and respondent may submit
"potential witness names and questions to be asked
during the investigative process." The Title IX
investigators have the discretion to assess the
"appropriateness and relevance" of such submissions.
3. Both parties have the right to "be informed of all
witnesses being interviewed."
4. After completing their investigation but before making
their recommendation, the investigators "will offer to
meet with [the parties] separately to discuss . . . the
facts gleaned in the matter and to offer a final
opportunity to the parties to ensure both have been
afforded the opportunity to present all relevant
witnesses and evidence before the finding is reached."
understandable words or actions, to participate in each form of
sexual activity."
- 8 -
5. Both parties will "[b]e allowed to review and respond to
pertinent evidence received" and "to review and respond
to the investigative report before it is submitted to
the Ass[ociate] Vice President for Student Affairs/Dean
for Students ['AVPSA']."6
6. After "the facts that will be used to reach the outcome
are shared with the parties," the investigators will
submit a final report to the AVPSA. The final report
"will contain factual findings and a recommendation of
responsibility as to the original claim and/or any
lesser offense."
7. In making their final recommendation to the AVPSA, the
investigators apply a preponderance of the evidence
standard and "must consider the totality of the evidence
presented."
8. The AVPSA "will determine if the facts gleaned in the
investigation . . . align with the findings offered by
the [i]nvestigator[s] and will then issue a formal
decision in the matter, including sanctions." The
parties must be notified within five business days, in
writing, of the AVPSA's decision.
6 These two rights were added to Stonehill's policy in a
revised version dated December 2017. The parties presume that the
revised policy applies to Doe's case, and we therefore do likewise.
- 9 -
9. Either party "may submit a request for an appeal" of the
AVPSA's decision to the Vice President for Student
Affairs.
On November 29, ten days after the incident, the Title
IX investigators interviewed Roe for the first time. The
investigators reported that, in the interview, Roe "stated that
her written statement contained her account of the incident and
that she preferred not to re-tell the details of the incident."
However, according to the investigators' report, see infra, "[s]he
did agree to answer questions about the statement and incident."
In the interview, Roe reiterated the characterization of her
relationship with Doe that was included in her written statement
-- i.e., that they were "surface level friends" who had "made out"
twice in her room -- and she again failed to report that the
previous encounters involved consensual digital penetration of her
vagina.7
Doe was interviewed on December 8 with his attorney
present. He also provided a written statement to the investigators
that described his interactions with Roe throughout the fall of
2017. Doe's complaint does not specify what the investigators
told him about the content of their interview of Roe, but his
7As described infra, Roe acknowledged in a later interview
with the investigators that the "previous encounters in her room
involved consensual sexual contact" that "includ[ed] digital
penetration of her vagina."
- 10 -
description of what he told the investigators includes responses
to details of Roe's account.8 The investigators also informed Doe
that Roe had provided a witness (Witness #2) who could confirm
that Doe was in Roe's dorm room that night. Doe identified a
witness (Witness #1) who could corroborate that he had not been
drinking that night. Doe understood the investigators to say they
were unlikely to interview either witness, although both were later
interviewed.
On December 20, the investigators informed Doe that the
"interview phase" of the investigation had concluded and asked to
meet with him to review the case before they prepared their report.
However, as described infra, when the investigators met with Roe
on December 28 to review their findings, they evidently
requestioned her based on the version of events obtained from Doe
on December 8. It was apparently during this second interview
that Roe first admitted that the "previous encounters in her room
involved consensual sexual contact" that "includ[ed] digital
penetration of her vagina." On January 12, 2018, the investigators
reviewed their factual findings with Doe and his attorney over the
8 For example, Doe alleges that he told the investigators
that, "at no point did Jane Roe 'pull away, ask [John Doe] to
stop,'" "'or protest in any manner.'" Compl. ¶ 263(F) (alteration
in original). In his brief on appeal, Doe indicates that, before
his interview, he received a copy of the memo drafted by Krentzman,
Stonehill's Title IX Coordinator, which included Roe's written
statement.
- 11 -
phone and said they would be preparing and forwarding a written
report of the disputed and undisputed facts. On January 23, the
investigators sent Doe their written findings of fact and gave him
seven days to submit a response.
The written findings document, which spanned five pages,
contained background information on the investigation, several
provisions from the sexual misconduct policy, and "Findings of
Fact" consisting of summaries of witness interviews, including the
interviews of Witness #1 and Witness #2. The investigators stated
that Roe had described the pair's relationship as "surface level
friends" who "would say 'hello' if they saw each other on campus."
In the passage recounting their past intimate activity, Roe was
quoted as saying that "the two occasions when she 'made out' with
[Doe] in her residence hall room were in late September or early
October." In the next sentence, however, the investigators stated
that Roe had "clarified" that the previous encounters in her room
"involved consensual sexual contact, including digital penetration
of her vagina." The written findings also reported Roe's
contention that she was drunk on the night of November 18-19, "but
'not slipping over myself' drunk." She had elaborated that, "on
a scale of one to ten, with ten being very drunk[,] she was probably
a six."
After reviewing this document, Doe and his attorney
asked that the final report make explicit that Roe had admitted to
- 12 -
a previous, consensual sexual relationship with Doe only in a
second interview. Jordan, one of the Title IX investigators,
replied that they would include that information in their final
report.
E. Adjudication of the Final Report
On approximately February 7, the investigators submitted
a final, two-part report to AVPSA Kevin S. Piskadlo. Part 1 of
the report was the document previously shared with Doe and Roe.
Part 2 of the report -- which the parties had not reviewed --
presented a list of disputed and undisputed facts, a section
labeled "Credibility Assessment," and a section labeled
"Investigative Findings."9 The findings section consisted of a
single sentence: "The [i]nvestigators determined that based on a
preponderance of the evidence it is more likely than not that [Doe]
violated Policy S1.14, specifically, non-consensual digital
penetration of the vagina."
Part 1 of the final report did not include the revision
Doe had requested concerning Roe's evolving description of their
prior relationship. Instead, the investigators simply reported in
9 Stonehill's policy does not explicitly provide for the
creation of a bifurcated report, but the investigators may have
prepared and distributed Part 1 to comply with the requirement in
the policy that they share "the facts gleaned in the matter" with
the parties before making a final recommendation. Doe did not
receive Part 2 until he was given a copy of the final report after
he was told the outcome of the investigation on February 12. See
infra.
- 13 -
Part 2 that the nature of their relationship "was clarified by
[Roe] in the review of facts."10
Part 2 also included other information that was not in
Part 1. It added to Roe's description of her level of
intoxication. The investigators stated that, "[d]uring the course
of the investigation [Roe] indicated that she believed that she
was intoxicated to the point of incapacitation and was, therefore,
unable to consent to sexual activity." Part 2 also highlighted an
exchange between Roe and Witness #2 shortly after Doe's visit to
Roe's room in which Roe allegedly repeated the comment, conveyed
to Doe in a Snapchat message, that her interaction with Doe "wasn't
ok." The investigators observed that "[t]he comment made by [Roe]
to her hall mate soon after the incident supports her statements
and belief that the sexual contact was unwanted." This exchange
did not appear in the summary of Witness #2's interview in Part 1
of the report, and thus was not disclosed to Doe when the
investigators reviewed Part 1 of the report with him.
Several days after the investigators submitted their
report, Doe met with Piskadlo, who informed him that he had been
found in violation of Stonehill's prohibition on "nonconsensual
sexual intercourse." Piskadlo also gave Doe a letter stating that
Stonehill notes in its brief that "Roe was interviewed
10
twice, on November 29 and December 28," and it is therefore
undisputed that the latter meeting was at least partially a second
interview and not merely a review of previously obtained facts.
- 14 -
Piskadlo had reviewed the investigators' final report and he was
dismissing Doe from Stonehill.11 Doe alleges that Piskadlo told
him that expulsion was the only permissible sanction for such a
violation.12
Doe appealed Piskadlo's decision to Pauline Dobrowski,
Stonehill's Vice President for Student Affairs, submitting a
detailed, thirty-seven-page memorandum that primarily alleged
procedural problems with Stonehill's investigation into Roe's
complaint. Dobrowski denied Doe's appeal, stating in a letter
that, after reviewing Doe's materials and the investigative
report, she had "determined that the [i]nvestigators' process was
compliant with our policy and that there was no new information
presented that would have impacted the outcome."13
11 The contents of Piskadlo's letter are described infra.
12Stonehill's sexual misconduct policy does not specify what
sanctions will apply to any given situation but does say that
sanctions "includ[e] dismissal from the College."
13The new information that Doe offered in his appeal consisted
of Facebook Messenger messages that he had exchanged with Roe
during the summer and fall of 2017 that he said he
had recently been able to recover. See Compl. ¶ 424. Doe asserted
that those messages support his explanation for the Snapchat
messages he sent to Roe on the morning of November 19.
Specifically, he argued that they
show that [Roe] shared her fears and
apprehensions with him and that he was
invariably supportive. They show that he
always encouraged her, spoke highly of her,
and, at one point when she appeared to be in
crisis, provided her with [a] "helpline" where
she could get assistance.
- 15 -
F. Procedural History
Doe filed this action against Stonehill in March 2020.
In his lengthy amended complaint, which spans 569 paragraphs and
more than 120 pages, Doe alleges breach of contract, sex
discrimination in violation of Title IX, unjust enrichment,
promissory estoppel, negligence, defamation, fraud, negligent
infliction of emotional distress, breach of the covenant of good
faith and fair dealing, and breach of the common law duty of
fairness. Doe sought a declaratory judgment stating that, inter
alia, Stonehill's investigation violated various rights, the
finding of responsibility against him was illegal, and Stonehill's
policies violate Title IX; a permanent injunction compelling
Stonehill to vacate its findings and remove all negative references
from Doe's record; and attorney's fees.
At the heart of Doe's complaint, as described in more
detail below, are allegations of multiple procedural errors in the
investigation that Doe claims denied him the fair and thorough
process promised by Stonehill's sexual misconduct policy. He
asserts that those errors affected the misconduct inquiry and
These communications show that he
. . . viewed her as vulnerable and fragile.
With these impressions clearly documented in
their Facebook communications, these messages
are consistent with John Doe's willingness on
the morning of November 19 to take
responsibility via Snap[c]hat for a wrong he
never committed.
- 16 -
resulted in his unjustified expulsion from Stonehill. He further
claims that the flaws in the proceedings resulted from sex bias on
the part of Stonehill's investigators and administrators. See,
e.g., Compl. ¶ 488 ("The proceeding by which he was found to be
responsible for the alleged sexual misconduct was flawed and
fundamentally biased and unfair."); id. ¶ 490 ("The particular
circumstances suggest that gender was a motivating factor behind
the erroneous finding.").
Stonehill moved to dismiss the complaint for failure to
state a claim. After a hearing, the district court concluded that
Doe failed to plausibly state a claim for relief under any of the
causes of action asserted in his complaint and granted Stonehill's
motion as to all counts. Stonehill Coll., 2021 WL 706228, at *1.
Doe timely appealed.
II.
We review de novo the district court's dismissal of a
complaint for failure to state a claim. Saccoccia v. United
States, 955 F.3d 171, 174 (1st Cir. 2020). In doing so, we
"assum[e] that all pleaded facts and reasonable inferences drawn
from them are true." Union of Concerned Scientists v. Wheeler,
954 F.3d 11, 16 (1st Cir. 2020). To survive a motion to dismiss,
a plaintiff must allege facts sufficient to state a plausible claim
for relief. Schatz v. Republican State Leadership Comm., 669 F.3d
50, 55 (1st Cir. 2012). In this context, plausible "means
- 17 -
something more than merely possible, and gauging a pleaded
situation's plausibility is a 'context specific' job that compels
us 'to draw on' our 'judicial experience and common sense.'" Id.(quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)).
We consider each of Doe's asserted causes of action that
he raises on appeal.14
A. Breach of Contract
As we have previously explained, "[a] student's
relationship to his university is based in contract." Havlik v.
Johnson & Wales Univ., 509 F.3d 25, 34 (1st Cir. 2007). Stonehill
does not dispute that its sexual misconduct policy establishes a
contractual relationship between the college and Doe. Doe's claim
that Stonehill breached the terms of this policy -- and thus his
contract with the college -- is governed by Massachusetts law.
Cloud v. Trs. of Bos. Univ., 720 F.2d 721, 724 (1st Cir. 1983).
Massachusetts recognizes two distinct theories of breach
of contract between a student and an educational institution.
Under the "reasonable expectations" theory, a court must consider
"the standard of 'reasonable expectation -- what meaning the party
making the manifestation, the university, should reasonably expect
14 The district court concluded that Doe waived his unjust
enrichment, promissory estoppel, and fraud claims. Stonehill
Coll., 2021 WL 706228, at *17. Doe does not challenge that
determination on appeal, so we likewise treat those claims as
waived.
- 18 -
the other party to give it.'" Schaer v. Brandeis Univ., 735 N.E.2d
373, 378 (Mass. 2000) (quoting Cloud, 720 F.2d at 724). We are
mindful that "a student's expectation can be reasonable even if
the precise expectation is not stated explicitly in the contract's
language." Sonoiki v. Harvard Univ., 37 F.4th 691, 709 (1st Cir.
2022). Instead, the appropriate inquiry is whether "the student's
expectation, viewed objectively alongside the express terms of the
contract, is based on the student's fair interpretation of the
contract's provisions." Id. Thus, we review "whether [Doe] has
asserted facts which established that [Stonehill] failed to meet
his reasonable expectations, thereby violating its contract with
[him]." Schaer, 735 N.E.2d at 378. Of course, as with any breach-
of-contract claim in Massachusetts, Doe also must show that he
suffered harm from the contractual breaches he alleges. See, e.g.,
Squeri v. Mount Ida Coll., 954 F.3d 56, 71 (1st Cir. 2020) (citing
Bulwer v. Mount Auburn Hosp., 46 N.E.3d 24, 39 (Mass. 2016)).
The second theory of contractual breach focuses on
whether the student was treated with "basic fairness." Schaer,
735 N.E.2d at 380. Broadly, the basic fairness framework ensures
that "[a] private school may not arbitrarily or capriciously
dismiss a student or do so in bad faith." Driscoll v. Bd. of Trs.
of Milton Acad., 873 N.E.2d 1177, 1187 (Mass. App. Ct. 2007).
Stonehill's obligation to act with basic fairness flows from the
sexual misconduct policy's explicit commitment to provide a "fair"
- 19 -
investigative process and the college's "independent duty to
conduct disciplinary procedures with basic fairness imposed by
Massachusetts law." Doe v. Trs. of Bos. Coll. ("Bos. Coll. I"),
892 F.3d 67, 87 (1st Cir. 2018).
Doe's sprawling complaint alleges numerous ways in which
the Title IX investigators and the college's administrators failed
to conduct his disciplinary proceedings consistently with
Stonehill's sexual misconduct policy and thus breached his
contract with the college. Although Doe faults the district court
for not addressing many "discrete instances of Stonehill's
contract breaches," Appellant's Br. at 30, we are satisfied that
the court considered the procedural deficiencies that warranted
its attention, albeit sometimes in its analysis of Doe's Title IX
claim. See, e.g., Stonehill Coll., 2021 WL 706228, at *12 (noting
that Doe "restates many of the same issues [in his contract
allegations] that he alleged as Title IX violations"). We likewise
focus on the alleged breaches that, in our view, warrant our
attention, taking each contract theory in turn.15
15We recognize that Doe highlights some of these alleged
breaches only in the Title IX portion of his brief. Nonetheless,
his Title IX claim is premised in substantial part on procedural
irregularities that he alleges were breaches of Stonehill's
obligations under its sexual misconduct policy, including "the
[p]olicy's 'thoroughness' requirement." Appellant's Br. at 46.
We thus view such alleged deficiencies as appropriately addressed
in our breach-of-contract assessment.
- 20 -
1. Reasonable Expectations
Doe's complaint broadly alleges that his expectations
were not met because the investigation failed "to follow the
procedures set forth in the S1.14 Policy." Compl. ¶ 501.
Specifically, he claims that the policy gave rise to his reasonable
expectations that (1) he would be given the opportunity to review
all relevant facts gleaned in the investigation before the final
report was sent to the AVPSA, see id. ¶¶ 106(F), 194; (2) he would
receive notice of all witness interviews, see id. ¶¶ 191, 249; (3)
Stonehill would "conduct a complete investigation," id. ¶ 501,
that was "thorough[] and dedicated to impartial fact-finding," id.
¶ 106(E); and (4) the AVPSA, Piskadlo, would "review[] and ma[ke]
independent determinations as to whether the facts gleaned in the
investigation aligned with the findings of the [i]nvestigators,"
id. ¶ 414(a). Doe alleges that the investigative process in his
case did not fulfill these expectations and therefore lacked
"fundamental fairness." Id. ¶ 501; see also id. ¶¶ 234, 276,
326, 347, 352-53, 362, 385, 414(a).
Drawing all reasonable inferences in Doe's favor, as we
must, we cannot say that the four deficiencies alleged above, and
described in more detail below, are inadequate on their face to
state a plausible breach-of-contract claim under the reasonable
expectations framework.
- 21 -
(a) Opportunity to Review Facts
Stonehill's policy states that "the [i]nvestigator will
offer to meet with the complainant and respondent separately to
discuss (post-fact finding but before a recommendation has been
made with regard to responsibility) the facts gleaned in the
matter," thereby giving the parties "a final opportunity . . . to
present all relevant witnesses and evidence before the finding is
reached." The policy further states that the parties will "[b]e
allowed to review and respond to pertinent evidence received."
This language clearly indicates that Doe would have the right to
review any relevant facts the investigators intended to submit to
the AVPSA. In addition, he could reasonably expect that he would
have the opportunity to explain or refute assertions by other
interviewees that contradicted his account of what occurred and to
correct any errors in the investigators' description of his own
interview.
Doe claims that, contrary to these expectations, the
Title IX investigators included two significant statements in
Part 2 of the final report to AVPSA Piskadlo that did not appear
in Part 1 of the report -- the section he was given for his review
and response. Doe cites the following statements from Part 2 as
inappropriately omitted from Part 1:
- 22 -
● "When Witness #2 made a comment about seeing [Doe] at
[Roe's] door earlier in the day, [Roe] responded by [saying]
something to the effect of 'it wasn't ok.'"16
● Roe's statement, as described by the investigators, "that
she believed that she was intoxicated to the point of
incapacitation." See, e.g., Compl. ¶ 385 (alleging that Doe first
learned of this statement from AVPSA Piskadlo). The district court
discounted the import of these omitted statements, largely because
it viewed them as cumulative of statements that did appear in Part
1. See Stonehill Coll., 2021 WL 706228, at *8-9, 13.17
Like the district court, we are unpersuaded that the
inclusion only in Part 2 of Roe's description of herself as
incapacitated plausibly impacted Doe's defense. In Part 1 of the
report, Roe is quoted as saying that her level of intoxication was
"'not slipping over myself' drunk." The pertinent statement in
Witness #2 reported seeing Doe at Roe's door "late at night"
16
-- i.e., in the early hours of November 19 -- and the comment
quoted above reportedly was made "later in the morning of the
incident."
We decline to consider two other facts discussed by the
17
district court that Doe argues were improperly omitted from Part 1
and included in Part 2. See Stonehill Coll., 2021 WL 706228, at
*8-9. One such omission was not clearly referenced in Doe's
complaint -- specifically, the fact that Doe, and not just Roe,
had reported that Roe "eventually cried" during the November 19th
encounter. The other supposed omission appears to be based on
Doe's misreading of the report to attribute to Roe a statement
"that prior instances of sexual intimacy had involved verbal
consent." Id. at *8. In fact, the report attributes that
statement to Doe.
- 23 -
Part 2 -- that "she believed that she was intoxicated to the point
of incapacitation and . . . therefore[] unable to consent to sexual
activity" -- unquestionably differs in degree from her original
report and goes to the heart of Doe's defense that the encounter
was consensual, as well as to Roe's credibility. Indeed, Doe
alleges that "[h]e did not detect any alcohol on [Roe's] breath
nor did she show any signs of having consumed any alcohol" on the
evening in question. Compl. ¶ 56. Yet, we fail to see how Doe
would have responded differently if Part 1 had reported that Roe
claimed she was incapacitated rather than, as she put it, "a six
out of ten, with ten being the most drunk." It already was clear
that Doe was challenging her claim of intoxication -- the report
noted that Doe "said that he did not think she had been drinking
at all." Moreover, the investigators concluded in Part 2 of the
report that Roe "was not incapacitated due to alcohol
consumption."18 Hence, we fail to see how Doe's ability to respond
18 In reaching that conclusion, the investigators relied on
the sexual misconduct policy's description of an incapacitated
person as someone who "lacks the capacity to understand the 'who,
what, when, where, why, or how' of the sexual interaction." The
investigators noted that Roe's "detailed description of the
incident, and the many facts corroborated by [Doe], indicated an
understanding of the situation."
- 24 -
to Roe's account was affected by this omission, given that he was
aware that she was claiming to be heavily intoxicated.19
The investigators' treatment of the exchange between Roe
and Witness #2, however, is more problematic. The fact that Roe
may have communicated to a third party the same sentiment about
the encounter that she expressed in a message to Doe -- "it wasn't
ok" -- inescapably lends credibility to Roe's depiction of the
incident.20 Indeed, Part 2 of the report invokes Roe's supposed
comment to Witness #2 as "support[] [for] her statements and belief
that the sexual contact was unwanted." By contrast, the summary
of Witness #2's interview that appeared in Part 1 of the report
contained no reference to this statement that was so important to
19 However, as we explain below, the investigators' handling
of Roe's claim of intoxication is relevant for a different reason.
See infra.
20Although the district court correctly observed that Doe did
not allege in his complaint how the omission of Witness #2's
statement from Part 1 was prejudicial, see Stonehill Coll., 2021
WL 706228, at *13, it is a fair inference from Doe's allegations
that -- as he argued in his Stonehill appeal -- he was unfairly
blindsided by the statement's inclusion in Part 2. Doe's complaint
alleges that he was told by the investigators that Witness #2's
knowledge was relevant only to circumstances "prior to the
incident," Compl. ¶ 336 -- specifically, to confirm Doe's presence
in Roe's dorm "on the night in question," id.; see also id. ¶ 281.
However, as he further alleges, the statement at issue referred to
the incident itself. See id. ¶ 368(C). Notably, the district
court did find that the failure to disclose Witness #2's statement
in Part 1 violated Stonehill's policy. See Stonehill Coll., 2021
WL 706228, at *8.
- 25 -
the investigators in finding Roe's account of the November 19th
incident more credible than Doe's.
The summary of Witness #2's interview in Part 1 does
include the fact that she and Roe had a conversation shortly after
the incident, but its content is described only as follows: "She
[Witness #2] stated that she also remembers seeing [Roe] later the
same morning and making a comment to her about [Doe] being at her
door."21 When reporting the "it wasn't ok" exchange between Roe
and Witness #2, the investigators do not specify whether
21 Witness #2's interview was summarized in Part 1 as follows:
Witness #2 stated that she remembers seeing
[Doe] at [Roe]'s residence hall door, but does
not recall the exact day or time. She stated
that she also remembers seeing [Roe] later the
same morning and making a comment to her about
[Doe] being at her door.
Witness #2 said that it was "late at night"
when she was walking from her room
. . . across the hallway [to the room of other
friends]. [Roe]'s room is next to her
friends' room. Witness #2 said that she saw
[Doe] knocking at [Roe]'s door. She said his
back was to her, but she still recognized him.
She said that they did not interact and she
was not in a position to notice if he appeared
intoxicated. She said that he "was standing
up fine." She said that a few minutes later
she left her friends' room and he was no longer
in the hallway. She does not know where he
went . . ..
Witness #2 said that "about a week before"
this incident she had spoken with [Roe] about
her and [Doe], but had no further information.
- 26 -
Witness #2 reported that comment to them or whether Roe herself
told the investigators that she had made the comment to
Witness #2.22 Regardless, we agree with Doe that the
investigators' emphasis on the comment as corroboration of Roe's
account means that its omission from Part 1 -- denying Doe the
opportunity to investigate and possibly challenge its accuracy --
cannot be dismissed as inconsequential on the ground that the
statement was merely cumulative of Roe's text message.
Hence, we conclude that Doe has stated a plausible
breach-of-contract claim based on the omission of the "it wasn't
ok" exchange from Part 1 of the report.
In his Stonehill appeal, Doe highlighted the ambiguity as
22
follows:
From the summary [in Part 2], it is impossible
to say whether Witness #2 or Jane Doe was the
source of [the] assertion that Jane Doe made
this comment to Witness #2. . . .
If the comment came from Jane [R]oe,
[John Doe] would not have been able to
question her about it. But, he [or his
attorney] could have asked Witness #2. If she
confirmed that Jane Doe had said that, it
would have had some limited probative value.
If Witness #2 denied it, it would have created
yet another instance in which Jane Doe had
made a representation that had proved false.
Whoever was the source of this information,
John Doe was entitled to know it before the
Interim Report became the Final Report. (This
is particularly so because it appears that the
[i]nvestigators placed unusual weight on
it. . . .).
- 27 -
(b) Notice of Witness Interviews
Doe's allegation that he reasonably expected that he
would be notified of witness interviews is based on the language
in Stonehill's policy stating that all parties are "allowed to
submit potential witness names for consideration" and will "be
informed of all witnesses being interviewed." The policy also
entitles parties "to submit questions for the [i]nvestigator to
ask during the investigation."
In rejecting Doe's lack-of-notice claim, the district
court noted that "he point[ed] to no provision of the [p]olicy
requiring investigators to inform a party prior to conducting an
interview," Stonehill Coll., 2021 WL 706228, at *9, and it endorsed
Stonehill's argument that "a requirement of advance notice would
hinder the school's ability to conduct a fair and impartial
proceeding because it could allow witnesses to be pressured or
le[]d," id. at *9 n.7. However, given the requirement that parties
must be informed of all witnesses being interviewed, we agree with
Doe that the policy language reasonably may be read to promise
advance notice of those interviews. Otherwise, the meaningfulness
of the opportunity to propose questions for the witnesses would be
greatly diminished. See Sonoiki, 37 F.4th at 709 (explaining that
we will find "a plausible claim" where "the reasonable expectation
- 28 -
is based on the student's feasible interpretation of the contract
language").23
We thus consider whether the asserted lack of notice for
the two interviews cited by Doe -- Witness #1's and Roe's --
plausibly supports a breach-of-contract claim.
i. The Interview of Witness #1
Doe alleges that the investigators indicated that they
were unlikely to question either party's proffered witness (i.e.,
Witness #1 for Doe and Witness #2 for Roe) and then failed to give
him notice when they decided to interview Witness #1.24 We think
it simply implausible that, viewed in context, that failure harmed
Doe's defense. A summary of Witness #1's interview was included
in Part 1 of the investigators' report, and Doe therefore had an
opportunity to correct any misinformation in it. Moreover, that
summary consisted entirely of Witness #1's account of the time he
spent with Doe on the night of November 18-19, all of which
23 Although we conclude that Stonehill's policy reasonably may
be read to promise advance notice of interviews, we reject Doe's
contention that the same language promised "notice of the topics
to be covered" in those interviews. The right to suggest questions
does not carry with it access to the investigators' decisions on
what to ask. "[V]iewed objectively alongside the express terms of
the contract," Doe's expectation on this point was unreasonable.
See Sonoiki, 37 F.4th at 709.
24Doe's complaint states that he did later receive notice of
the investigators' intent to interview Witness #2, albeit on the
same day they conducted the interview.
- 29 -
validated Doe's description of events before he headed to Roe's
dormitory.25
ii. The Second Interview of Roe
Doe's lack-of-notice allegation as to Roe focuses on the
investigators' meeting with her to review the facts they developed
during their investigation -- a session that Stonehill
acknowledges became a second interview. To provide context for
our discussion of this lack-of-notice claim, we briefly recap the
timing of the investigators' interactions with Roe and Doe:
November 29: The investigators meet with Roe.
December 8: The investigators meet with Doe.
December 20: The investigators tell Doe in an
email that the interview phase of the
investigation was complete and the next step
would be "to meet and review the case before
we create our investigative report." Compl.
¶ 285.
December 28: Despite telling Doe that the
interviewing had been completed, the
investigators conduct a second interview with
Roe -- along with reviewing the facts with
her.
January 12: The investigators review the facts
with Doe by phone.26
25 Specifically, according to the investigators' summary,
Witness #1 stated that (1) he was with Doe between 9 PM and
approximately midnight on November 18; (2) Doe received a text
message toward the end of that timeframe, and then said he needed
to meet a friend; and (3) Doe had nothing to drink while they were
together.
26 Doe contends that the investigators failed to notify him
before either of their meetings with Roe, but he emphasizes the
lack of notice for the questioning of Roe that took place on
December 28 -- after his own interview.
- 30 -
The investigators' report indicates that it was during
their second meeting with Roe that she "clarified" that she and
Doe had previously engaged in consensual sexual activity. Having
by then heard Doe's conflicting account of the parties' prior
relationship and the alleged nonconsensual encounter, it is a fair
inference that the investigators had planned to requestion Roe and
ask about Doe's version of events, which they did. Hence, the
investigators' alleged failure to provide Doe with advance notice
of their renewed questioning of Roe is plainly a contractual
breach.
We also think it plausible that the lack of notice harmed
Doe's defense. Although he certainly knew that Roe, as the
complainant, would be interviewed, he was told on December 20 --
before her requestioning -- that the interview phase of the
investigation had been completed. Doe thus alleges that, before
Roe's second interview, he was denied "the opportunity to submit
potentially detailed questions to the Title IX [i]nvestigators to
pose to Jane Roe." Compl. ¶ 296; see also id. ¶ 326.
Arguably, Doe had ample opportunity earlier in the
process to offer such detailed questions to be asked of Roe. As
noted above, Doe indicates in his brief that he had obtained the
memo prepared by Title IX coordinator Krentzman -- containing Roe's
description of the sexual encounter -- before his own interview
with the investigators on December 8. At that time, Doe had no
- 31 -
reason to think the interview process had ended, and he thus could
have offered questions to challenge Roe's account when he first
met with the investigators. Regardless of whether he took that
opportunity, however, he was entitled to notice that Doe would be
questioned again. That notice would have served as an implicit
invitation to submit follow-up questions and given him the
motivation to do so. Instead, again, Doe was told on December 20
-- eight days before Roe's second meeting with the investigators
-- that the interviewing was done. With notice that the
investigators would be requestioning Roe, Doe could have offered
either pointed questions about the November 19th incident itself
or additional background about the pair's prior relationship for
the investigators' use in formulating their own questions.27 Such
questions may have elicited responses from Roe that would have
been helpful to Doe. Hence, at this juncture, we think it
plausible that the alleged failure to provide Doe with notice of
Roe's second interview compromised Doe's ability to defend
himself.
Doe alleges that the investigators did not want him to pose
27
questions to Roe "about their sexual interaction on the night in
question" and that the investigators "knew that John Doe was likely
to submit questions about the nature, extent, and timing of the
sexual interaction between Jane Roe and John Doe as well as how
and when Jane Roe consented to his sexual stimulation of her."
Compl. ¶¶ 254, 253.
- 32 -
(c) Fair and Thorough Investigation
Stonehill's policy states that "[t]he College will take
appropriate actions to ensure that investigations of
sexual/gender-based misconduct . . . are completed in a prompt and
equitable manner, with a dedication to impartial fact finding,"
and it also states that "the fairness and thoroughness of the
process are paramount." Doe alleges that the investigators failed
to meet their obligation to perform a fair and "complete
investigation" in various ways.28 Compl. ¶ 501. We focus on four
alleged deficiencies -- three addressing the investigators'
handling of Roe's account of what happened and one involving the
investigators' treatment of Doe's account -- that touch on Doe's
and Roe's credibility and thus appear significant in evaluating
their conflicting versions of the November 19th incident.
i. Investigators' questioning of Roe
Doe claims that the investigators accepted Roe's written
summary, which she had given to Title IX Coordinator Krentzman,
without pressing her on important details of her account. See
Compl. ¶¶ 243-44. In rejecting this contention, the district court
cited the portions of Part 1 of the investigators' report stating
that Roe "did agree to answer questions about the statement and
Doe uses the word "complete" in his complaint as a synonym
28
for "thorough." We see no significance in any distinction between
the terms.
- 33 -
incident" and that "[t]he investigators asked questions to clarify
or expand on the details of [her written] statement." Stonehill
Coll., 2021 WL 706228, at *10 (last alteration in original)
(emphasis omitted).
However, Part 1's summary of the interview of Roe has an
important gap. It indicates that the investigators discussed Doe's
identity, Roe's previous relationship with him, the timing of the
incident, Roe's level of intoxication, her perception of how much
Doe had been drinking, when Doe left her room, and her
communication with Doe after the incident. But it does not refer
to Roe's description of how the sexual activity began or how she
responded to Doe's actions during the incident. See Compl. ¶¶ 345-
46 (stating that Part 1 "omitted any description of the initiation
of their sexual interaction, the progress of their sexual
interaction, [and] the verbal and physical indications she gave to
John Doe to either not commence or to cease sexual interaction").
Rather, Part 1 of the report skips from Roe's statement that "she
did not observe behavior in [Doe] to indicate that he had been
drinking" to her statement that "after she began to cry,
hyperventilate, and pretend to 'fall asleep' [Doe] left
'relatively quickly.'"
Part 2 of the report adds some detail. It lists as an
undisputed fact that Doe "fingered" Roe while they were lying on
her bed, and the list of disputed facts includes Roe's assertion
- 34 -
that "she explicitly told [Doe] to stop and pushed him away from
her." Part 2 also reports Roe's statement that she repeatedly and
explicitly said "that she did not want to engage in sexual
activity."
The omission from Part 1 of the alleged misconduct
itself from the description of Roe's interview supports Doe's
allegation that the investigators at least initially "complied
with Jane Roe's desire not to inquire into any of the details of
her sexual encounter with" him -- and thereby failed to adequately
probe the veracity of the most important part of her account.
Compl. ¶¶ 243, 345. Whether that failure was rectified, at least
in part, during Roe's second interview is unclear. The additional
detail in Part 2 of the report simply mirrors the content of Roe's
written statement to Krentzman29 and, hence, does not show that the
investigators ever asked Roe questions about the sexual activity
itself.
ii. Investigators' treatment of Roe's claim of
intoxication
Doe alleges that the investigators failed to verify
Roe's intoxication level even though her alcohol consumption
factored heavily into her account of the incident. He further
29 For example, in her written statement, Roe described
telling Doe multiple times that she did not "want to do anything"
with him and that, at one point while they were lying together on
her bed, she "pushed him away."
- 35 -
alleges on information and belief that the "[i]nvestigators knew
that they could determine whether Jane Roe had been consuming
alcohol on the evening of November 18-19, 2017 and, if so, whether
she was 'drunk' . . . by asking [her] to identify witnesses who
would confirm that she was at New Hall on the evening of November
18-19, 2017; that she had consumed alcohol at New Hall; that she
had become intoxicated, and that her state of intoxication was
evident." Compl. ¶ 307.
We agree with Doe that a determination by the
investigators that Roe had not -- or had -- been drinking would
have been significant in assessing the parties' accounts of what
occurred. As recounted above, Roe described her condition as
significantly impaired, claiming that she was six out of ten on a
ten-point scale of drunkenness and "believed that she was
intoxicated to the point of incapacitation." Roe's credibility
may have been seriously damaged if the investigators determined
that she had not been drinking that night.30 Indeed, Roe herself
30 Doe's complaint asserts, on information and belief, that
the Title IX [i]nvestigators knew that
investigating Jane Roe's assertions as to her
pre-incident alcohol consumption and state of
intoxication would not be difficult and was
extremely important to properly assess her
credibility, as well as the credibility of
John Doe's assertion that she did not appear
to have been drinking alcoholic beverages on
the night of the incident.
- 36 -
seemed to attach great significance to her impaired condition,
suggesting that her drunkenness made her more vulnerable to Doe's
actions and thus supported her account of what happened.
iii. Investigators' treatment of Doe and Roe's mutual
sexual history
As described above, after originally stating that she
and Doe were friends who had twice "made out sober," Roe
acknowledged, apparently in her second interview, that they had
previously engaged in consensual sexual activity. Part 1 of the
report describes Roe's acknowledgment as follows: "She clarified
that previous encounters in her room involved consensual sexual
contact, including digital penetration of her vagina." In Part 2,
the investigators restated Roe's admission -- i.e., that "at least"
twice previously in her dorm room "they engaged in consensual
sexual activity, including 'fingering'" -- and then specified the
timing of her admission by saying that "[t]his point was clarified
by [Roe] in the review of facts." (Emphasis added.)
Doe argues that, given Roe's admission of prior sexual
activity similar to with Doe's description of the November 19th
incident, Roe's original statement should have been more
accurately characterized as a lie. Doe's complaint states that,
upon reviewing Part 1 of the report, he and his attorney had noted
that the investigators' depiction of Roe's "recantation" "both
Compl. ¶ 310.
- 37 -
obscure[d] it and tacitly justif[ied] it as a 'clarification'" --
which "could mislead the decision[]maker, the AVPSA/Dean of
Students, in weighing John Doe and Jane Roe's credibility." Compl.
¶ 352. Accordingly, Doe's attorney sent an email asking for a
revision: "We would like it noted that [Roe]'s clarification of
consensual sexual contact occurred only after she was interviewed
a second time. And it substantiates my client's statement
regarding prior sexual contact." Id. ¶ 353.31
As noted above, one of the investigators, Shayla Jordan,
responded to Doe's attorney, also by email, stating that she and
her colleague, David Bamford, had reviewed the request and "decided
to include this information in our final report that we share with
the Dean of Students." Id. ¶ 354. The final report nonetheless
left intact the Part 1 description of Roe's revised account and
Part 2 added without comment the information that Roe's
"clarification" was provided "in the review of facts" -- i.e., in
her second interview. The investigators provided no description
of how they elicited the "clarification" or how Roe explained her
earlier failure to disclose what would seem to be highly relevant
information about her relationship with Doe before the November
31We do not view the attorney's reiteration of the term
"clarification" as an endorsement of that terminology. Rather,
construing the complaint favorably to Doe, the attorney sought an
express acknowledgment that Roe had belatedly admitted that Doe,
not she, had accurately described their prior sexual activity.
- 38 -
19th incident. Doe alleges that proper attention to Roe's changing
account -- and the validation of his depiction of their
relationship -- would have bolstered his credibility while
diminishing hers. See, e.g., id. ¶ 292 (asserting, "[o]n
information and belief, the Title IX investigators . . . understood
that, if John Doe was right about their pre-incident degree of
intimacy, it would have also raised broader and serious questions
about the reliability of Jane Roe's accusation"). That assertion
easily passes the plausibility threshold. Stonehill's
decisionmakers -- Piskadlo and Dobrowski -- would not be meeting
directly with Doe and Roe, and the investigators' depiction of the
parties' credibility was thus an important aspect of the misconduct
inquiry. It is certainly plausible that the bland, unelaborated
statement about Roe's "clarification" affected the administrators'
credibility assessment.32
32 In his complaint, Doe also points to the investigators'
failure to include his account of Roe's response when he asked if
she was okay after she became quiet during their November 19th
encounter. According to Doe, Roe responded: "[I]t's not you. It's
ok." See Compl. ¶¶ 62, 263(I), 315-319. However, Doe neither
objected to this omission from the summary of his interview when
he reviewed Part 1 of the investigators' report nor raised the
omission in his Stonehill appeal. In his brief to us, he cites
the paragraphs of his complaint that refer to Roe's response only
in support of a general statement that the investigators failed to
question Roe "about the incident and . . . their pre-incident
intimate interactions." Appellant's Br. at 25. Because Doe has
consistently chosen not to rely on Roe's "it's not you" response,
we do not consider it.
- 39 -
iv. Investigators' treatment of Doe's Snapchat messages
With respect to the investigators' treatment of his own
account, Doe argues that they unfairly relied on his post-incident
Snapchat messages "as a substitute for the searching analysis of
'consent' that was required of them." Appellant's Br. at 49.
Doe's Snapchat messages plainly were central to the investigation
and -- as Doe emphasizes -- the investigators "relied heavily" on
them in finding that he had engaged in nonconsensual intercourse
with Roe. Id. at 47. Indeed, as the district court observed,
this case is atypical because Doe's apologetic messages -- "Please
forgive me for being a drunken idiot," "I'm so really sorry I know
I fucked up," and "I totally misread the situation" -- may be read
as "contemporaneous objective written evidence of non-consent."
Stonehill Coll., 2021 WL 706228, at *12.
Doe, however, told the investigators that the messages
were untrue and that he sent them to "make [Roe] feel better."33
33Doe's complaint states that he gave the investigators the
following description of his communications with Roe:
A. [L]ater that morning, Jane Roe sent John
Doe a message in which she "seemed to be upset"
and John Doe responded by saying "whatever I
thought would make her feel better" which
included John Doe saying "I'm sorry;"
B. [W]hen he told Jane Roe he was "sorry",
John Doe meant that he was "empathetic towards
her and sorry that [Jane Roe] felt that way;"
. . . .
- 40 -
In his complaint, Doe describes past communications with Roe that
prompted his concern for her emotional stability, see Compl. ¶¶ 29-
30, and he states that, after receiving her "that wasn't ok"
message, he was concerned that her "unwarranted accusation might
indicate that she was emotionally and mentally fragile" and that
she "might have an emotional crisis" if he denied responsibility,
id. ¶ 69. Although it is unclear how much detail Doe gave the
investigators about his concern for Roe's emotional state, the
summary of Doe's interview in Part 1 of the report does note that
Roe "would often talk to [Doe] about 'being scared' or
'overwhelmed.'"34
The investigators did not entirely ignore Doe's
explanation for his "mea culpa" Snapchat messages. Both parts of
the report note that Doe stated repeatedly that "he sent the
messages to make [Roe] feel better." Nor were the investigators
obligated to accept Doe's explanation. However, when summarizing
the evidence in Part 2 of their report, the investigators did not
Compl. ¶ 264(A), (B). In their report, the investigators noted
that Doe "stated that he was not drunk and denied that he did
anything wrong."
34As described above, Doe submitted Facebook Messenger
messages in his Stonehill appeal to reinforce his explanation for
his November 19th Snapchat messages. See supra note 13. In that
appeal, he argued that "[t]hese communications show that he . . .
viewed her as vulnerable and fragile," and he asserted that the
"messages are consistent with John Doe's willingness on the morning
of November 19 to take responsibility via Snap[c]hat for a wrong
he never committed."
- 41 -
link Roe's frequent communications about being scared or
overwhelmed with Doe's explanation. To the contrary, the
investigators' summary cites Doe's messages immediately after
noting that Roe's comment to Witness #2 ("it wasn't ok") "supports
[Roe's] statements and belief that the sexual contact was
unwanted." The investigators go on to observe that "[t]he messages
sent by [Doe] to [Roe] after the incident lead the investigators
to conclude that [Doe] understood that the sexual interaction with
[Roe] was unwanted as well."
In setting forth that conclusion, the investigators
offered no rationale for rejecting Doe's characterization of his
messages, an omission that is notable because other significant
information that he had provided -- including the nature of his
prior relationship with Roe and his lack of intoxication -- was
corroborated. Meanwhile, as we have described, the investigators'
report revealed an important omission in Roe's original
description of her prior sexual history with Doe and her
credibility as to her claimed intoxication apparently went
untested. In his Stonehill appeal, Doe argued that "[t]he
[i]nvestigators' failure to show that they had considered and
weighed John Doe's explanation[s]" for the messages and why they
nonetheless treated the messages as "damning admission[s]" "fell
far short of their obligations as professional Title IX
- 42 -
investigators" and constituted procedural error. See also Compl.
¶ 501.35
We agree that, in its treatment of Doe's Snapchat
messages, the investigators' report plausibly reflects a failure
to grapple with the complex credibility assessment presented by
Doe's and Roe's conflicting accounts of the November 19th
incident.36 Importantly, both parties agree that there was sexual
35 In the breach-of-contract count of his complaint, Doe
included "the investigators' failure to consider text messages and
additional information" in a list of Stonehill's alleged breaches
of "its duty to abide by its own policies and procedures and/or
meet common standards of due process and provide fundamental
fairness" -- an allegation that, viewed in Doe's favor, encompasses
both the investigators' failure to consider his post-incident
Snapchat messages in context and Dobrowski's failure to consider
the Facebook Messenger messages submitted with his appeal. Compl.
¶ 501.
36We note that Doe also has presented a view of his messages
that could be seen as partially at odds with his assertion that he
accepted responsibility simply to make Roe feel better. He argues
that the messages "are consistent with Doe having stimulated Roe
after having received verbal or physical cues that manifested to
him -- and would have manifested to a reasonable person in his
place -- that Roe had consented," but then "becoming concerned
that Roe was no longer confirming her continuing consent and may
have withdrawn it." Appellant's Br. at 48; see also Compl. ¶ 73
("Both Snapchat messages were consistent with John Doe's knowledge
that . . . she had consented and wanted him to begin and
continue."). According to Doe, while the messages show that he
"tried to placate" Roe once he understood that she was accusing
him of nonconsensual contact, they do not show that he knew he
lacked consent at the time -- "the legal standard the investigators
were required to address." Appellant's Br. at 49.
Doe does not allege in his complaint that he explained his
messages in this way to the investigators. Regardless, the flaw
Doe alleges is the investigators' failure to demonstrate that they
considered his explanation for his messages, which may have led
- 43 -
contact on November 19. Doe admits that he was lying beside Roe,
on her bed, and that he began to digitally stimulate her without
express verbal consent -- as he had done on three occasions in the
past when Roe acknowledged the activity was consensual. Both agree
that the encounter ended when Roe began breathing heavily. The
remaining circumstances surrounding the November 19th encounter,
however, are hotly disputed.
Hence, aside from the Snapchat messages -- and the
belatedly reported exchange between Roe and Witness #2 -- the
allegations in this case present a classic "he said, she said"
scenario. The preponderance of the evidence standard calls for a
weighing of the competing evidence. Inescapably, the
investigators' failure in their report to explicitly assess Doe's
explanation for his Snapchat messages suggests a deficiency in the
weighing of the competing evidence that plausibly may have affected
both the finding of a violation and, as discussed below, the
decision of Stonehill's administrators to expel Doe.37
them to conclude improperly in their report "that [he] understood
that the sexual interaction with [Roe] was unwanted."
37The significance of the Snapchat messages to the district
court's assessment of Doe's claims cannot be overstated. The court
noted that the definition of consent in Stonehill's policy "might
admit the possibility that a reasonable person could conclude
consent had been given even if the other party did not so intend."
Stonehill Coll., 2021 WL 706228, at *11. However, the court
rejected the plausibility of that possibility in this case "in the
face of Roe's contemporaneous assertions (e.g., that 'wasn't
consensual') and Doe's contemporaneous admissions (e.g., that 'I
know I fucked up' and that 'I totally misread the situation'),
- 44 -
We thus conclude that Doe has plausibly alleged a breach
of Stonehill's promise to conduct a fair and thorough
investigation, compromising his defense, based on the four flaws
we have described in the investigators' gathering and presentation
of the facts.
(d) Independent Review
Pursuant to Stonehill's policy, the investigators' final
report was submitted to AVPSA Piskadlo, who was obliged to
"determine if the facts gleaned in the investigation do indeed
align with the findings offered by the [i]nvestigator[s]" before
"issu[ing] a formal decision in the matter." Based on this
provision, Doe could reasonably expect that Piskadlo -- as
Stonehill's primary decisionmaker -- would independently review
the facts presented in the investigators' final report to assess
the correctness of their findings. Yet, as Doe alleges, see Compl.
¶¶ 388, 396, 414(a), 501, Piskadlo's letter informing Doe that he
has been dismissed from Stonehill appears to state only the
investigators', not Piskadlo's own, conclusion:
I reviewed the completed report and
recommendation from the Title IX
[i]nvestigation, and based on the totality of
the evidence presented, including all
statements and exhibits, the investigators
found that it is more likely than not that
[Doe] assaulted [Roe] on the night in
question. It was determined that [Roe] had
both of which are alleged by Doe." Id.; see also id. (referring
to Doe's "contemporaneous admissions of misconduct").
- 45 -
not consented to sexual penetration and that
the messages sent by [Doe] to [Roe] after the
incident indicated that [Doe] understood that
the sexual interaction was unwanted as well.
(Emphasis added.)38
Piskadlo's facial deference to the investigators
supports Doe's allegation that Piskadlo failed to make an
independent determination that the sexual misconduct finding was
supported by a preponderance of the evidence. See, e.g., Compl.
¶¶ 414(a), 501. In addition, the letter's seeming reliance solely
on the investigators' conclusion supports an inference that the
deficiencies in the investigative process were carried forward
into the administrative review. Doe raised the inadequacy of
Piskadlo's review in his appeal to Dobrowski, the Vice President
for Student Affairs, arguing, inter alia, that Piskadlo's duties
"logical[ly]" required him to "issue a decision demonstrating that
38 In his complaint, Doe noted that
[t]he Dismissal Letter did not contain any
discussion of Piskadlo's review and
determination of the evidence. In fact, it
did not even clearly state that Piskadlo,
himself, held an opinion on the Title IX
[i]nvestigators' findings and recommendation
of responsibility. Instead, Piskadlo merely
repeated the Title IX [i]nvestigators'
findings.
Compl. ¶ 396; see also id. ¶ 388 (noting that, "[a]lthough Piskadlo
made it clear to John Doe that the Title IX [i]nvestigators had
found him 'responsible,' Piskadlo did not explain why he, himself,
had found that John Doe was responsible").
- 46 -
he has met his review obligations" and that his letter provided no
such assurance.
Nonetheless, in response to Doe's lengthy memorandum
requesting an appeal, Dobrowski stated without elaboration that
she had "determined that the [i]nvestigators' process was
compliant with our policy." Her one-page letter39 explained that
her role in the appeals process was to consider two factors: (1)
whether there was a "[f]ailure to follow the process or procedures
outlined within [Stonehill's] policy, which resulted in
significant prejudice such that it impacted the outcome," and (2)
whether there was "[n]ew information that was not known to the
parties at the time of the investigation."40 Dobrowski stated
that, "[h]aving reviewed your request and the investigative
39Dobrowski first told Doe in a telephone conference call,
in which his attorney and Stonehill's attorney also participated,
that his appeal had been denied. Doe subsequently received the
one-page letter reiterating the denial of his appeal and affirming
his dismissal from the college.
40Stonehill's policy provides that an appeal from the
decision in a misconduct investigation "will be considered based
on the following criteria:"
1. Failure to follow the process or procedures
outlined within this [p]olicy, which resulted
in significant prejudice such that it impacted
the outcome. Minor deviations from designated
procedures will not be the basis for
sustaining an appeal unless significant
prejudice results.
2. New information that was not known to the
parties at the time of the investigation.
- 47 -
report, I did not find sufficient reasoning to meet either criteria
for appeal."
In his complaint, Doe notes that Dobrowski's letter did
not specifically acknowledge or rule on his contention that
Piskadlo, like the Title IX investigators, "had failed to comply
with standards and processes" set forth in Stonehill's sexual
misconduct policy. Compl. ¶ 423. Doe further asserts that
Dobrowski declined to explain her reasoning on the advice of
Stonehill's counsel. Id. ¶ 417. Doe alleges that, with her
letter, Dobrowski ratified and approved "the investigation,
evaluation, adjudication, and resolution of the charge against
John Doe[,] including, in particular, the actions of the Title IX
investigators and the AVPSA." Id. ¶ 433.
These allegations plausibly suggest that Piskadlo failed
to make an independent judgment on whether "the facts gleaned in
the investigation do indeed align with the findings offered by the
[i]nvestigator[s]" and that Dobrowski, in turn, disregarded that
procedural irregularity (among the others raised by Doe). The
lack of an independent judgment by Stonehill's decisionmakers
would be incompatible with the explicit terms of Stonehill's policy
and the promise of a fair and thorough investigation. Moreover,
the administrators' alleged failure to properly scrutinize the
investigative process and ensure the validity of the
- 48 -
investigators' finding is a contractual breach that plainly
supports an inference of prejudice to Doe.
(e) Other Alleged Procedural Flaws
In his complaint and briefing, Doe alludes to additional
ways in which Stonehill allegedly breached his reasonable
expectations in its handling of his case. As indicated above, we
decline to address most of these allegations, as they are
unsupported by the policy provisions on which Doe relies, belied
by the facts alleged in his complaint, or insufficiently developed.
See, e.g., Plazzi v. FedEx Ground Package Sys., Inc., 52 F.4th 1,
7 (1st Cir. 2022). We briefly address only Doe's contention that
he was denied his right to an "iterative" inquiry, including an
ability to cross-examine Roe.
In support of this contention, Doe directs us to Haidak
v. University of Massachusetts-Amherst, 933 F.3d 56 (1st Cir.
2019), which describes an iterative inquiry as one where the
"questioning of the complainant 'was informed' by the respondent's
testimony." Appellant's Reply Br. at 6 (quoting Haidak, 933 F.3d
at 70). However, Doe identifies no language in the policy, beyond
the college's commitment to "thoroughness," that suggests a right
to cross-examination or other specific elements of an iterative
process, and we have found none. Moreover, his complaint indicates
that the investigators took several steps that Doe identifies as
characteristic of an "iterative" investigation: they "posed
- 49 -
questions to [Roe] based on [Doe]'s assertions," Compl. ¶ 299, and
they permitted both parties to review Part 1 of the report and
submit additional information, see id. ¶ 333. To be sure, we have
identified flaws in the execution of Stonehill's process. But a
commitment to "thoroughness" does not imply the use of a specific
investigative model, and Doe's expectations to the contrary are
not reasonable.
(f) Reasonable Expectations: Summary
We conclude that Doe has plausibly alleged that
Stonehill breached his reasonable expectations by denying him the
opportunity to review all relevant facts before the final report
was sent to the AVPSA, failing to provide advance notice of Roe's
second interview, failing to perform a fair and thorough
investigation in the ways particularized herein, and failing to
ensure that the ultimate decisionmakers independently reviewed the
facts to assess whether he "more likely than not" engaged in
nonconsensual intercourse with Roe. In so concluding, we emphasize
that a court evaluating a motion to dismiss must take an indulgent
view of the alleged facts. We must "accept as true all well-
pleaded facts alleged in the complaint" and draw all plausible
inferences from the complaint's allegations in the plaintiff's
favor. Legal Sea Foods, LLC v. Strathmore Ins. Co., 36 F.4th 29,
34 (1st Cir. 2022) (quoting Alston v. Spiegel, 988 F.3d 564, 571
(1st Cir. 2021)). Hence, to defeat dismissal of his contract
- 50 -
claim, Doe must only plead facts giving rise to a plausible
inference that his reasonable expectations were not met because
Stonehill strayed from the promises made in its sexual misconduct
policy in ways that harmed his defense and affected the outcome.
We have concluded that Doe has met this requirement with
the flaws we have identified. Moreover, even if one or more of
those irregularities might be viewed in isolation as a "minor
deviation[] from designated procedures" without impact on the
outcome of the Title IX investigation,41 Doe has plausibly alleged
that, at least cumulatively, they had such an effect.
We note that, in reaching this conclusion, we
necessarily disagree with the district court's statement, echoed
by Stonehill, that Doe's complaint itself "arguably alleges he
violated the policy." Stonehill Coll., 2021 WL 706228, at *11.
In making this observation, the district court cited paragraph 58
of Doe's complaint, in which Doe describes the beginning of the
November 19th incident as follows:
Jane Roe then returned to her bed and lay down
next to John Doe. In the same way he had on
earlier occasions, he began to rub her back
and then moved his hand to her vagina and began
to digitally stimulate her. She began to make
41 This "minor deviation" language in Stonehill's policy
applies only to the standard for appeals within the college. See
supra note 40. Nonetheless, that standard -- requiring that any
challenged procedural flaw affect the outcome of a Title IX
investigation -- also provides an apt formulation for assessing
the viability of Doe's breach-of-contract allegations under
Massachusetts law.
- 51 -
moaning noises which, based on their prior
sexual interaction, John Doe knew meant she
was experiencing intense pleasure. When John
Doe stopped, Jane Roe rolled onto her back and
made her vagina more accessible to him. Based
on their prior sexual interaction, John Doe
believed that Jane Roe did this deliberately
in order to make it easier for him to continue
stimulating her.
Compl. ¶ 58. As reproduced above, Stonehill's policy defines
consent as "informed, freely, and voluntarily given agreement,
communicated by clearly understandable words or actions, to
participate in each form of sexual activity." The policy further
states that "[p]revious sexual relations . . . is not the
equivalent of consent to future sexual activity."
Paragraph 58 does not rely on the fact that Doe and Roe
previously engaged in consensual sexual activity to justify Doe's
assumption that he had Roe's consent on November 19. Rather, the
paragraph reports circumstances on November 19 that Doe claims
resembled the beginning of their earlier consensual episodes, thus
demonstrating why he believed he had consent on the fourth
occasion. Doe admits that on the prior occasions he digitally
stimulated Roe based on her "physical cues" before asking for
permission to continue. It is debatable whether the physical cues
on which Doe relied on those earlier occasions satisfied
Stonehill's requirement that consent be "communicated by clearly
understandable words or actions." But Roe concedes that the
earlier encounters, involving similar details to Doe's report of
- 52 -
what occurred on November 19, were consensual. Hence, this
paragraph does not contradict Doe's allegation that he understood
Roe's behavior on November 19, as described in the paragraph, to
likewise manifest consent -- and certainly does not constitute an
admission to violating Stonehill's policy.42
2. Basic Fairness
Under Massachusetts law, in examining an asserted breach
of contract based on a school's handling of an allegation of sexual
misconduct against a student, we must also consider whether the
proceedings were conducted with basic fairness. Cloud, 720 F.2d
at 725. The basic fairness requirement appears chiefly concerned
with whether the school "act[ed] in good faith and on reasonable
grounds." Coveney v. President & Trs. of Coll. of Holy Cross, 445
N.E.2d 136, 139 (Mass. 1983). When, as here, "a school expressly
promises no less than basic fairness . . . the court's analysis to
ensure that the disciplinary proceedings were 'conducted with
42 The district court correctly observed that the
circumstances on November 19, as alleged by Doe, were not identical
to his description of the earlier instances of sexual activity.
See Stonehill Coll., 2021 WL 706228, at *8 n.6. For example,
rather than removing her clothing, as occurred in their first
encounter, Roe changed her clothing after Doe arrived in her room
on November 19. See Compl. ¶ 57 ("Jane Roe . . . told John Doe
that she was cold and rose from the bed, removed her t-shirt in
front of him . . . and put on a tank top and a fleece pullover.").
However, Doe alleges that on both the first occasion and on
November 19, Roe moved toward him in a way that made "her vagina
more accessible to him," id. ¶¶ 38, 58, and that on the other two
occasions she responded with "the same physical cues" as she had
given the first time, id. ¶¶ 41, 44.
- 53 -
basic fairness' . . . focuses on assuring compliance with the
express contractual promise." Bos. Coll. I, 892 F.3d at 88
(quoting Cloud, 720 F.2d at 725).
We recently observed that, while the "denial of basic
fairness is a recognized theory of recovery [in Massachusetts],
the precise contours of such a claim are yet to be clearly
defined." Sonoiki, 37 F.4th at 714. We have few relevant cases
to draw from. In one prior case addressing the "basic fairness"
test, we focused on whether the educational institution provided
adequate procedural protections for the student. See Doe v. Trs.
of Bos. Coll., 942 F.3d 527, 534-35 (1st Cir. 2019).43 In another
case, we considered whether certain aspects of the disciplinary
process rendered the proceedings "unfair," but concluded that none
did. Cloud, 720 F.2d 725-26. Similarly, Massachusetts caselaw
provides few examples of what might constitute a breach of basic
fairness. See, e.g., Schaer, 735 N.E.2d at 380 (finding that
allegations concerning the "improper admission of testimony" and
that "the hearing was conducted in an atmosphere of 'hysteria and
misinformation'" did not establish a breach of basic fairness);
Similarly, the district court found no violation of the
43
basic fairness requirement because the complaint indicated that
Doe "was provided a variety of procedural protections" and that
"he was able to explain his side of the story, review the facts
section of the report, meet with the investigators, and request
follow-up questions or interviews." Stonehill Coll., 2021 WL
706228, at *14.
- 54 -
Roe v. Northeastern Univ., No. 16-03335-C, 2019 WL 1141291, at *14
(Mass. Super. Ct. Mar. 8, 2019) (stating that "notice to [the
student under investigation] is -- as a matter of fundamental
fairness inherent in any college process -- essential prior to [a]
hearing and any related appeal").
However, we need not define the precise contours of the
basic fairness analysis here for a simple reason: Stonehill made
a "commitment" in its sexual misconduct policy to "[e]ngag[e] in
an impartial, prompt, fair, and equitable investigative process to
resolve reports of sexual gender-based misconduct," (emphasis
added), and we have concluded that Doe has adequately alleged
procedural irregularities that may have resulted in prejudice to
his defense and, hence, affected the outcome of the misconduct
inquiry. Whatever else the requirement of "basic fairness" means,
we cannot reconcile plausible allegations of prejudicial
investigative flaws with Stonehill's commitment to provide a
"fair" process.
We thus conclude that Doe has stated a breach-of-
contract claim under both theories available to him under
Massachusetts law.
B. Title IX
Title IX provides that "no person . . . shall, on the
basis of sex, . . . be subjected to discrimination under any
program or activity receiving Federal financial assistance." 20
- 55 -
U.S.C. § 1681(a). A claim of sex bias in the enforcement or design
of a college's sexual misconduct policy may state a claim under
Title IX. See, e.g., Bos. Coll. I, 892 F.3d at 89-90. It is
undisputed that Stonehill receives federal financial assistance
and is thus covered by Title IX.
We have not set forth a single test for analyzing this
type of Title IX claim, see Bos. Coll. I, 892 F.3d at 90, and have,
instead, recognized several ways in which a plaintiff may establish
sex discrimination. The two theories discussed by the district
court that we consider most pertinent to Doe's Title IX allegations
are "selective enforcement" and "erroneous outcome."44
To succeed with a "selective enforcement" claim under
Title IX, a plaintiff must demonstrate that "the severity of the
penalty and/or the decision to initiate the proceeding was affected
by the student's gender." Haidak, 933 F.3d at 74 (quoting Yusuf
v. Vassar Coll., 35 F.3d 709, 715 (2d Cir. 1994)). A plaintiff
44 Some courts have framed the Title IX query in terms that
more closely track the statutory language: "'[D]o the alleged
facts, if true, raise a plausible inference that the university
discriminated against [the plaintiff] "on the basis of sex"'?"
Doe v. Samford Univ., 29 F.4th 675, 686 (11th Cir. 2022) (second
alteration in original) (quoting Doe v. Purdue Univ., 928 F.3d
652, 667-68 (7th Cir. 2019)); see id. (listing other circuits that
have adopted the Purdue University approach). The Eleventh Circuit
in Samford University slightly modified the Purdue University
inquiry, asking "whether the alleged facts, if true, permit a
reasonable inference that the university discriminated against Doe
on the basis of sex." Id. at 687. Here, we choose to use the
frameworks most applicable to Doe's specific contentions that also
were discussed by the district court and the parties.
- 56 -
relying on an "erroneous outcome" theory must allege facts
"'cast[ing] some articulable doubt on the accuracy of the outcome
of the disciplinary proceeding,' and indicating that 'gender bias
was a motivating factor.'" Bos. Coll. I, 892 F.3d at 90
(alteration in original) (quoting Yusuf, 35 F.3d at 715).45 Such
facts may take the form of "particular evidentiary weaknesses[,]
. . . particularized strengths of the defense," or "particular
procedural flaws affecting the proof." Yusuf, 35 F.3d at 715.
1. Selective Enforcement
The district court dismissed Doe's selective enforcement
claim because it found he "ha[d] not plausibly alleged any facts
[suggesting] that his proceeding was initiated because of his
gender, or that male and female students accused of sexual
misconduct are treated differently" by Stonehill. Stonehill
Coll., 2021 WL 706228, at *6. The court explained that Doe cited
no facts "suggesting anything other than that Stonehill responds
to the complaints it receives, regardless of the genders of the
parties involved." Id. We agree with the district court's
analysis.
To support his selective enforcement theory, Doe's
complaint alleges that "in virtually all cases of alleged sexual
45 As illustrated above, despite Title IX's language
prohibiting discrimination "on the basis of sex," 20 U.S.C.
§ 1681(a), courts sometimes refer to "gender bias" when describing
the prohibited motivation.
- 57 -
misconduct at Stonehill, the accused student is a male and the
accusing student is a female," Compl. ¶ 480, and he further
alleges, "on information and belief, [that] a female student at
Stonehill has never been disciplined, much less expelled, for
alleged sexual misconduct," id. ¶ 481. As the district court
pointed out, we rejected a similar argument in Doe v. Trustees of
Boston College, where the plaintiffs argued that the college's
disciplinary procedures were "infected with systemic gender bias"
because, during a ten-year period, "only male students have been
accused of sexual assault." Bos. Coll. I, 892 F.3d at 90-92. We
explained that "[i]t is unreasonable to draw such an inference [of
sex bias] from this information rather than recognize that other
non-biased reasons may support the gender makeup of the sexual
misconduct cases" at the college. Id. at 92; see also Doe v. Brown
Univ., 43 F.4th 195, 207 (1st Cir. 2022) (noting a study showing
that "[m]ore women lodge complaints of sexual misconduct by men
than vice versa"). Likewise, Doe alleges no facts that plausibly
support an inference that Stonehill imposes more severe penalties
for sexual misconduct on men than on women. Rather, he alleges
that Piskadlo informed him "that Stonehill had only one sanction
for the offense of 'nonconsensual sexual intercourse' -- immediate
dismissal from Stonehill" -- and that "dismissal was always imposed
irrespective of the [specifics of the] accused student's conduct."
Compl. ¶ 389. The allegation that Stonehill consistently applies
- 58 -
the same punishment for a particular type of misconduct does not
demonstrate differential treatment based on sex.
Without being able to rely on the assertion that the
accused students are virtually all male, Doe is left with a bare
assertion of selective enforcement unsupported in any other way.
We need not accept allegations "too meager, vague, or conclusory
to remove the possibility of relief from the realm of mere
conjecture." Saccoccia, 955 F.3d at 174 (quoting Starr Surplus
Lines Ins. Co. v. Mountaire Farms Inc., 920 F.3d 111, 114 (1st
Cir. 2019)). Thus, we conclude that Doe has not plausibly alleged
a selective enforcement claim.
2. Erroneous Outcome
To plausibly assert an erroneous outcome claim, Doe must
allege facts that both cast articulable doubt on the result of his
disciplinary proceedings and indicate that his sex was a motivating
factor in the outcome. Bos. Coll. I, 892 F.3d at 90. The district
court concluded that Doe's complaint failed to meet either
requirement. We disagree that Doe's complaint fails to plausibly
allege articulable doubt, but we nonetheless agree that Doe's Title
IX claim fails because he has not plausibly alleged that the flaws
in his disciplinary proceedings are attributable to sex bias. We
explain our conclusion for each prong below.
- 59 -
(a) Articulable Doubt
As described above, Doe asserts numerous procedural
flaws in Stonehill's investigation that he claims undermine the
validity of its outcome: the investigators' inclusion of the "it's
not ok" exchange between Roe and Witness #2 in the final report
without having provided Doe the opportunity to challenge or
investigate its provenance or veracity; the failure to give Doe
advance notice of Roe's second interview; the failure to question
Roe closely on the details of the November 19th incident or
corroborate her statement that she was heavily intoxicated on the
night of November 19, while minimizing her mischaracterization of
her prior sexual relationship with Doe; the investigators' failure
to provide a rationale in their report for rejecting Doe's
explanation for his apologetic Snapchat messages; and the
seemingly superficial review of the investigators' report by
Piskadlo and Dobrowski. We agree that, when considered together,
the procedural irregularities plausibly cast articulable doubt on
the investigators' finding, adopted by Stonehill, that "it is more
likely than not" that Doe violated Stonehill's sexual misconduct
policy.
(b) Sex Bias
We next consider whether Doe adequately alleged facts
suggesting "a causal connection between the outcome of [his]
disciplinary proceedings and gender bias." Bos. Coll. I, 892 F.3d
- 60 -
at 91.46 In evaluating claims of sex bias, courts have deemed
relevant both serious flaws in the disciplinary proceedings and
external pressure on schools to vigorously pursue claims of sexual
misconduct. See infra. Doe's complaint alleges that both factors
exist in his case and support a plausible inference that sex bias
affected the outcome of his disciplinary proceedings.
We agree with other courts that procedural
irregularities may be relevant in identifying sex discrimination
under Title IX. See, e.g., Doe v. Regents of Univ. of Cal., 23
F.4th 930, 940 (9th Cir. 2022); Doe v. Oberlin Coll., 963 F.3d
580, 586-87 (6th Cir. 2020); Menaker v. Hofstra Univ., 935 F.3d
20, 31 (2d Cir. 2019). We also are mindful, however, that
procedural errors are not inevitably a sign of sex bias. See,
e.g., Doe v. Univ. of So. Ind., 43 F.4th 784, 797 (7th Cir. 2022)
(noting that an inference of sex bias may be unsupportable when
the plaintiff alleges a host of "procedural choices that could
46Doe urges us to adopt the pleading standard for Title IX
cases articulated by the Second Circuit in Doe v. Columbia
University, 831 F.3d 46 (2d Cir. 2016), in which the court stated
that a plaintiff must allege facts showing "a minimal plausible
inference" of sex discrimination. Id. at 55. Although Doe
summarily suggests that the Second Circuit's standard is less
demanding than the pleading standard we ordinarily apply when
evaluating a motion to dismiss, he does not explain how it would
-- or should -- differ in application from our obligation to draw
all plausible inferences in the plaintiff's favor and our
recognition that the plaintiff's burden at the motion to dismiss
stage is a relatively light one. We therefore decline to delve
into this issue. See Plazzi, 52 F.4th at 7 (deeming waived an
argument that plaintiffs did not adequately develop on appeal).
- 61 -
arguably be considered mistakes"). The challenge is to distinguish
between proceedings plausibly affected by sex bias in violation of
Title IX and proceedings whose alleged flaws are not attributable
to sex bias. Id. at 793-94. For example, other plausible reasons
for procedural irregularities may include "ineptitude,
inexperience, and sex-neutral pro-complainant bias." Doe v.
Samford Univ., 29 F.4th 675, 692 (11th Cir. 2022).
Here, although we have identified potentially serious
flaws in Doe's disciplinary proceedings, Doe has failed to plead
sufficient facts to support a plausible inference that the
irregularities are attributable to sex bias. To be sure, the facts
as alleged may plausibly suggest undue solicitude to Roe. But
deference to Roe, without more, does not show that her treatment
-- or Doe's -- is attributable to sex rather than to some other
reason, such as Roe's status as the complainant. Beyond his
unsupported allegation that Stonehill penalizes men for sexual
misconduct more severely than women, Doe does not allege that
Stonehill has treated sexual assault claims brought by men
differently from such claims brought by women. His allegation
that "[s]tudents accused of sexual misconduct at Stonehill . . .
have invariably been male," which he asserts "on information and
belief," Compl. ¶ 478, fails to show sex bias in the investigation
for the same reason that his selective enforcement claim fails --
i.e., the disparity in the number of claims brought by men and
- 62 -
women does not demonstrate that Stonehill's procedures are
generally biased against men or that the outcome of Doe's
proceedings was motivated by his sex.
Importantly, even with the serious alleged flaws we have
identified, the disciplinary process in this case was not as
inexplicably and egregiously one-sided as in cases where courts
have concluded that the allegations supported a plausible
inference of sex bias. In Doe v. Columbia University, for example,
the plaintiff alleged that the accusing student's claim of
nonconsensual intercourse was unsupported by any evidence and that
the university "declined even to explore the testimony of [his]
witnesses." 831 F.3d 46, 57 (2d Cir. 2016); see also Doe v. Purdue
Univ., 928 F.3d 652, 657-658, 669 (7th Cir. 2019) (noting, among
other circumstances, that the accused student was denied
permission to present witnesses when he met with the advisory panel
tasked with making a recommendation on the case; the complainant
did not appear at that meeting and "did not even submit a statement
in her own words"; and the Dean of Students described the
complainant as "a credible witness" even though she had never
spoken with her); Univ. of So. Ind., 43 F.4th at 794 (listing and
describing cases in which "[t]he plaintiff alleged what amounted
to a sham grievance process"). Doe was given a meaningful
opportunity to present his version of what occurred. The
investigators requestioned Roe after hearing Doe's side of the
- 63 -
story and, albeit inadequately, they noted in their final report
that she initially gave an inaccurate description of their prior
sexual activity. Hence, although Doe has plausibly alleged
contractual breaches that may have harmed his defense, Stonehill's
conduct was not so egregious that -- absent any other indicators
of sex bias -- it alone supports an inference that the college was
motivated to discipline him because of his sex.
Doe alleges that external pressures on Stonehill also
are relevant in assessing the adequacy of his Title IX claim and,
in combination with the procedural flaws, give rise to a plausible
inference of sex bias. We agree with the consensus among the
circuits that pressure from a federal investigation into a school's
handling of sexual misconduct cases can "establish background
indicia of sex discrimination." Schwake v. Ariz. Bd. of Regents,
967 F.3d 940, 949 (9th Cir. 2020); see also Doe v. Univ. of Ark.-
Fayetteville, 974 F.3d 858, 865 (8th Cir. 2020) (citing the
relevance of "[e]xternal pressure on a university" to demonstrate
that it was acting vigorously in response to complaints by female
students); Doe v. Univ. of Scis., 961 F.3d 203, 209-10 (3d Cir.
2020) (same); Doe v. Univ. of Denver, 952 F.3d 1182, 1192-93 (10th
Cir. 2020) (same); Purdue Univ., 928 F.3d at 668-69 (same); Doe v.
Baum, 903 F.3d 575, 586-87 (6th Cir. 2018) (same); cf. Columbia
Univ., 831 F.3d at 57-58 (citing pressure from the student body
and the public). Such an inquiry, when initiated by the Office of
- 64 -
Civil Rights ("OCR") of the Department of Education ("DOE"), has
been found relevant in Title IX cases based on the plausible
inference that a school would fear the loss of federal funding "if
it could not show that it was vigorously investigating and
punishing sexual misconduct." Purdue Univ., 928 F.3d at 668; see
also, e.g., Doe v. Miami Univ., 882 F.3d 579, 594 (6th Cir. 2018)
(considering, among other factors, the external pressure on the
university because of the "potential . . . loss of all federal
funds").
Relying on this precedent, Doe alleges that several
complaints about Stonehill's handling of sexual misconduct
allegations on campus were pending in the OCR as of March 2016,
and he alleges that Stonehill was still under the scrutiny of the
OCR eighteen months later when the incident with Roe occurred. He
asserts that, because of the OCR inquiry and the emergence of the
#MeToo movement in the fall of 2017, the college "felt pressure to
expedite the investigation and find a male student responsible for
sexual misconduct." Compl. ¶ 209. Doe also cites publicity in
March 2016 "related to th[e OCR] investigations." Id. ¶ 492.47
47The Title IX count of Doe's complaint includes the
allegation that "the very recent #METOO movement, and the DOE's
pending investigations against Stonehill, and the publicity
related to those investigations, all contributed to the
discriminatory conduct of Stonehill in its[] investigation,
determination of wrongdoing, and sanctioning of John Doe." Compl.
¶ 492.
- 65 -
In our view, however, the link Doe attempts to draw
between these background factors and his disciplinary proceedings
is too weak to create a plausible inference that sex bias played
a role in how the process unfolded.48 The Second Circuit's decision
The record contains two March 2016 articles about the DOE
investigation into Stonehill's handling of an alleged sexual
assault. One article quotes an OCR "compliance team leader" as
saying that the OCR would be investigating whether Stonehill had
"failed to respond promptly and equitably to reports and/or
incidents of sexual violence of which it had notice." Cody
Shepard, "Feds investigating Stonehill College for handling of
sexual assaults," The Enterprise (Mar. 15, 2016),
https://www.wcvb.com/amp/article/feds-investigating-stonehill-
college-for-handling-of-sexual-assaults/8232745 (last visited
Dec. 10, 2022).
48 Our court has only once previously considered allegations
of external pressure on an educational institution in the context
of a Title IX claim. We concluded, at the summary judgment stage,
that appellants' reliance on Boston College's receipt of a 2011
"Dear Colleague Letter" was "conclusory and meritless" because
they did not "explain[] how the Dear Colleague Letter reflects or
espouses gender bias." Bos. Coll. I, 892 F.3d at 92. The DOE has
distributed guidance on various Title IX requirements to
educational institutions in the format of "Dear Colleague"
letters. See, e.g., Letter from Russlynn Ali, Ass't Sec'y for
Civ. Rts., U.S. Dep't of Educ. (Apr. 4, 2011),
https://www2.ed.gov/about/offices/list/ocr/letters/colleague-
201104.pdf. As we have observed, the 2011 Letter "tied federal
funding for private colleges to their compliance with certain
requirements for handling sexual harassment and sexual violence on
their campuses." Bos. Coll. I, 892 F.3d at 91. Courts have found
the 2011 Letter relevant to the plausibility of a Title IX claim
because of the "accompanying pressure" to comply. Purdue Univ.,
928 F.3d at 669.
Doe does not allege pressure on Stonehill from the 2011
Letter, which -- as he recognizes -- was withdrawn in 2017. In
its 2017 Dear Colleague Letter, the DOE noted that "[l]egal
commentators ha[d] criticized the 2011 Letter and [a 2014 Q&A
document] for placing 'improper pressure upon universities to
adopt procedures that do not afford fundamental fairness to
students accused of sexual misconduct.'" Letter from Candice
- 66 -
in Doe v. Columbia University again provides a relevant contrast.
There, contemporaneously with the plaintiff's disciplinary
proceedings, there was an outcry on campus denouncing the
university's handling of sexual assault claims brought by women,
see 831 F.3d at 50-51, and, two months earlier, an article about
the controversy appeared in the New York Post, id. at 50. The
university's president had promised to hold a town hall meeting on
the issue around the time of the plaintiff's hearing, and just a
few weeks earlier, a student newspaper specifically criticized the
university's Title IX investigator for inadequately investigating
sexual assault complaints. Id. at 51; see also id. at 58 (noting
"the [c]omplaint's suggested inference that the [disciplinary]
panel adopted a biased stance in favor of the accusing female and
against the defending male varsity athlete in order to avoid
further fanning the criticisms that Columbia turned a blind eye to
such assaults"). Similarly, in Doe v. Purdue University, the
Seventh Circuit stated that an inference of sex bias was
strengthened by the fact that, during the month of the plaintiff's
discipline, an article from The Washington Post titled "Alcohol
isn't the cause of campus sexual assault. Men are," 928 F.3d at
669, was added to the Facebook page of a university center
Jackson, Acting Ass't Sec'y for Civ. Rts., U.S. Dep't of Educ.
(Sept. 22, 2017), https://www2.ed.gov/about/offices/list/ocr/let
ters/colleague-title-ix-201709.pdf.
- 67 -
"dedicated to supporting victims of sexual violence," id. at 656;
see also id. at 669 ("Construing reasonable inferences in [the
plaintiff's] favor, this statement, which [the center] advertised
to the campus community, could be understood to blame men as a
class for the problem of campus sexual assault rather than the
individuals who commit sexual assault.").
Here, by contrast, Doe relies primarily on the DOE
inquiry that was publicized in March 2016 -- nearly two years
before the Title IX investigators submitted their final report in
his case.49 He cites no contemporaneous attention to the issue on
campus or in the press, and he does not allege that any Stonehill
representative involved in his case was targeted for specific
criticism for mishandling sexual assault complaints. Nor does
Doe's bare invocation of the #MeToo movement, absent some facts
49 Doe also alleges that an inference of sex discrimination
arises from the fact that Stonehill has separate procedures for
general student misconduct and sexual misconduct. He premises
that assertion on a Q&A document issued by the DOE in 2017 stating
that, "[w]hen a school applies special procedures in sexual
misconduct cases, it suggests a discriminatory purpose." Compl.
¶ 218 (alteration in original). However, we agree with the
district court that, read in context, the 2017 Q&A appears to be
addressing separate processes that have different burdens of
proof. See Stonehill Coll., 2021 WL 706228, at *4. It is
undisputed that Stonehill's misconduct policies uniformly use a
preponderance standard, and we therefore draw no inference from
Stonehill's use of separate procedures for sexual misconduct
allegations. We note, as an aside, that although Doe's complaint
alleges the violation of both policies, see, e.g., Compl. ¶ 423,
he develops no breach-of-contract argument premised on the general
student misconduct policy. We therefore consider any such argument
waived.
- 68 -
linking it to Stonehill's investigation and decision-making,50
carry him over the plausibility threshold. The alleged pressure
on Stonehill to vigorously pursue sexual assault claims at best
gives rise to a plausible inference that Stonehill was motivated
to validate any claims it received, but Doe offers no facts
supporting an inference that the college's motivation differed for
men and women.
We thus conclude that Doe has not adequately alleged a
Title IX claim under either the selective enforcement or erroneous
outcome theories. With respect to the latter, although his
allegations suffice to plausibly suggest articulable doubt as to
the outcome of the disciplinary proceedings, he has not plausibly
alleged that sex bias played a role in motivating that outcome.
C. Breach of Covenant of Good Faith and Fair Dealing
In Massachusetts, "[t]he covenant of good faith and fair
dealing is implied in every contract." Uno Rests., Inc. v. Bos.
Kenmore Realty Corp., 805 N.E.2d 957, 964 (Mass. 2004). Doe makes
a fleeting argument that the district court erred by treating his
basic fairness claim and his good faith and fair dealing claim as
50 Doe does allege that Roe was motivated by the #MeToo
movement, asserting in his complaint that "this movement struck a
chord with [her] because on October 20, 2017, she updated her
status on her Facebook page in support of #METOO." Compl. at 2.
But he does not allege that Stonehill was aware of her motivation
or explain how her motivation influenced Stonehill in carrying out
its investigation.
- 69 -
identical. He does not explain, however, how the facts supporting
the two claims differ. As we have recently stated, "the denial of
basic fairness concept is rooted in the implied promise of good
faith and fair dealing, meaning the denial of basic fairness is
the student disciplinary adjudications' version of claiming a
breach of the implied covenant of good faith and fair dealing."
Sonoiki, 37 F.4th at 716 (citation omitted). Thus, as Doe does
not identify a distinct basis for this claim, we affirm the
district court's dismissal of it. See Young v. Wells Fargo Bank,
N.A., 717 F.3d 224, 237 (1st Cir. 2013) (affirming the dismissal
of a duplicative claim). 51
D. Negligence and Negligent Infliction of Emotional Distress
To state a claim for negligence under Massachusetts law,
one must allege that "the defendant owed the plaintiff a duty of
reasonable care, that the defendant breached this duty, that damage
resulted, and that there was a causal relation between the breach
of the duty and the damage." Jupin v. Kask, 849 N.E.2d 829, 834-
35 (Mass. 2006). As we have explained, however, when school
documents "prescribe [a] disciplinary process" that establishes a
51 Doe's complaint also contains a separate count alleging
that Stonehill breached the "common law duty of fairness." Compl.
¶¶ 553-57. Doe does not address this claim in his brief, and we
cannot identify a "common law duty of fairness" in Massachusetts
caselaw that is distinct from the covenant of good faith and fair
dealing. We therefore consider this additional claim waived and
affirm the district court's dismissal of it. See Abdisamad v.
City of Lewiston, 960 F.3d 56, 59 (1st Cir. 2020).
- 70 -
contractual relationship with its students, the school does not
owe "any additional independent duty [in tort] outside of their
existing contractual relationship." Bos. Coll. I, 892 F.3d at 94.
This principle also dooms Doe's negligent infliction of emotional
distress claim because one must establish negligence to
successfully set forth a claim for negligent infliction of
emotional distress. See Galvin v. U.S. Bank, N.A., 852 F.3d 146,
161 (1st Cir. 2017).
The district court suggested that Doe's allegations of
negligent supervision and training may fall outside the limitation
for tort claims premised on contractually based disciplinary
procedures. See Stonehill Coll., 2021 WL 706228, at *15 n.11.
Even assuming that suggestion is correct, we agree with the
district court that Doe's complaint fails to state a plausible
claim of negligence rooted in negligent supervision or training.
See id. at *15. To allege negligent supervision, "a plaintiff
must show that the 'employer [became] aware or should have become
aware of problems with an employee that indicated his unfitness,
and the employer fail[ed] to take further action such as
investigating, discharge or reassignment.'" Helfman v.
Northeastern Univ., 149 N.E.3d 758, 775 (Mass. 2020) (first
alteration in original) (quoting Foster v. The Loft, Inc., 526
N.E.2d 1309, 1311 (Mass. App. Ct. 1988)). Doe argues, briefly,
that Stonehill is liable for negligent supervision because
- 71 -
Krentzman, the Title IX Coordinator, "did not adequately train
Bamford and Jordan," the investigators on Doe's case, and permitted
"their woeful incompetence in the investigation and determination
of responsibility." Doe does not allege with any specificity how
Krentzman would have become aware of this alleged incompetence,
and his brief on appeal does not point to any specific facts
supporting this broad allegation.
Nor does he allege facts plausibly showing that the Title
IX investigators or the reviewing officials, Piskadlo and
Dobrowski, were not properly trained. Rather, his allegations
suggest that they failed to act consistently with their training.
See, e.g., Compl. ¶¶ 293 (referring to the training received by
the Title IX investigators), 431 (referring to the training
received by Dobrowski). Accordingly, we agree with the district
court that Doe's negligence-based claims fail.52
E. Defamation
Lastly, Doe argues that he was defamed by the concluding
statement in the final report, which said, below the heading
"Investigative Findings": "The Investigators determined that based
on a preponderance of the evidence it is more likely than not that
[Doe] violated Policy S1.14, specifically, non-consensual digital
Because we find that Doe's negligent supervision claim was
52
properly dismissed, we need not reach his argument that his
intentional infliction of emotional distress claim may survive by
reference to the supervision claim.
- 72 -
penetration of the vagina."53 The district court concluded that
the statement was not defamatory because it "clearly represents
the recommendation -- the opinion -- of the Title IX investigators
after conducting the investigation and reviewing the full factual
record." Stonehill Coll., 2021 WL 706228, at *16. In making this
determination, the district court noted that the statement "is
accompanied by cautionary language" and "is supported by
disclosed, non-defamatory facts because it is accompanied by the
full [f]inal [r]eport." Id.Statements of opinion are not actionable under
Massachusetts defamation law. Scholz v. Delp, 41 N.E.3d 38, 45
(Mass. 2015). "Whether a statement is a factual assertion or an
opinion is a question of law 'if the statement unambiguously
constitutes either fact or opinion.'" Id. (quoting King v. Globe
Newspaper Co., 512 N.E.2d 241, 244 (Mass. 1987)). The Supreme
Judicial Court of Massachusetts has set forth factors to be
considered in evaluating whether a statement may be deemed a
statement of fact or of opinion as a matter of law:
[T]he test to be applied . . . requires that the court
examine the statement in its totality in the context in
which it was uttered or published. The court must
consider all the words used, not merely a particular
phrase or sentence. In addition, the court must give
weight to cautionary terms used by the person publishing
53In his complaint, Doe asserted that the final report and
Dobrowski's letter denying his appeal "contained numerous false
and defamatory statements," Compl. ¶¶ 528, 530, but he focuses
solely on this statement on appeal.
- 73 -
the statement. Finally, the court must consider all of
the circumstances surrounding the statement, including
the medium by which the statement is disseminated and
the audience to which it is published.
Cole v. Westinghouse Broad. Co., 435 N.E.2d 1021, 1025 (Mass. 1982)
(quoting Info. Control Corp. v. Genesis One Comput. Corp., 611
F.2d 781, 784 (9th Cir. 1980)).
We agree with the district court that the challenged
statement, taken in context, is inarguably a non-actionable
opinion. Stonehill's policy states that the investigators will
prepare a report for the AVPSA that includes a "recommendation of
responsibility." As the district court noted, the investigators'
recommendation was accompanied in the report by the facts -- not
themselves challenged as defamatory -- that supported the
recommendation. See Piccone v. Bartels, 785 F.3d 766, 771 (1st
Cir. 2015) ("[T]he speaker can immunize his statement from
defamation liability by fully disclosing the non-defamatory facts
on which his opinion is based."). The recommendation also was
modified by the cautionary phrase "more likely than not." Hence,
under Massachusetts law, the challenged statement is unambiguously
an opinion that cannot support a defamation claim.
F. Additional Claims
Given its dismissal of all substantive counts, the
district court also dismissed the counts of the complaint seeking
a declaratory judgment, permanent injunction, and attorney's fees.
- 74 -
See Stonehill Coll., 2021 WL 706228, at *17. Because we reverse
the dismissal of Doe's breach-of-contract claim, we also reverse
the dismissals of the counts seeking a declaratory judgment and
permanent injunction. We affirm dismissal of the attorney's fees
count, which was linked to Doe's Title IX claim.
III.
For the reasons set forth above, we affirm the district
court's dismissal of Doe's Title IX, covenant of good faith and
fair dealing, common law duty-of-fairness, negligence, negligent
infliction of emotional distress, and defamation claims, as well
as his count seeking attorney's fees. We reverse the district
court's dismissal of Doe's breach-of-contract claim, as well as
the dismissal of the counts seeking a declaratory judgment and
permanent injunction, and we remand the case to the district court
for further proceedings on the plausible contractual breaches that
we have identified.
We recognize that Doe has submitted a 569-paragraph
complaint that broadly incorporates all of his allegations within
each count. Given that most of Doe's claims have been dismissed,
the district court may choose to require Doe to amend his
complaint, or adopt other procedures, so that the court may
efficiently resolve the remaining breach-of-contract claim.
So ordered. No costs are awarded.
- 75 -