John Doe v. Samford University

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[PUBLISH]
It the
United States Court of Appeals
Hor the Eleventh Circuit
No. 21-12592
JOHN DOE,
Plaintiff-Appellant,
versus
SAMFORD UNIVERSITY,
MALLORY KRUNTORAD,
ED.D. TIM S. HEBSON,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 2:21-cv-00871-ACA
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2 Opinion of the Court 21-12592
No. 21-12840
JOHN DOE,
Plaintiff-Appellant,
versus
SAMFORD UNIVERSITY,
MALLORY KRUNTORAD,
Ed.D. TIM S. HEBSON,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 2:21-cv-00871-ACA
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21-12592 Opinion of the Court 3
Before WILLIAM Pryor, Chief Judge, JORDAN, Circuit Judge, and
BROWN,” District Judge.
WILLIAM Pryor, Chief Judge:
This consolidated appeal presents two questions: first,
whether John Doe, a pseudonymous student at Samford Univer-
sity, has stated a claim against the university for a violation of Title
IX, 20 U.S.C. § 1681(a), based on a university disciplinary board
finding him responsible for sexual assault and suspending him for
five years; and second, whether Doe is entitled to proceed under a
pseudonym. Because Doe has not plausibly alleged that his suspen-
sion was “on the basis of sex,” see id., we affirm the dismissal of his
claim. And because the dismissal puts an end to the litigation, we
dismiss as moot the appeal from the order denying Doe’s motion
to proceed under a pseudonym.
I. BACKGROUND
Because one of the consolidated appeals “is from the dismis-
sal of a complaint, we accept the allegations of the complaint as
true. We recount the facts as alleged in the complaint. And we con-
strue them in the light most favorable to the plaintiff.” Darrisaw v.
Pa. Higher Educ. Assistance Agency, 949 F.3d 1302, 1303 (11th Cir.
2020) (citation omitted).
“Honorable Michael L. Brown, United States District Judge for the Northern
District of Georgia, sitting by designation.
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4 Opinion of the Court 21-12592
John Doe, the pseudonymous plaintiff, was a senior at Sam-
ford University, a private Christian university. On the evening of
Halloween 2020, he attended a party located at an offcampus
apartment. He brought with him two pitchers of an alcoholic bev-
erage he concocted. “[TJhe drink was, at most, seven percent ...
alcohol.”
Jane Roe, another pseudonymous student, arrived at the
apartment sometime later. Doe and Roe had never met before. Af-
ter trying some of the beverage Doe brought to the party, Roe
struck up a conversation with him. “Jane Roe commented to [Doe]
about the loud noise level at the [p]arty. [Doe] suggested that they
go to[a].. . [fJriend’s [a]partment [nearby] where it was quieter so
they could talk.” Roe agreed and the two left together. “Jane Roe
did not appear intoxicated” and “[n]o one stopped [her] from leav-
ing the [pJarty with [Doe].” “From the time Jane Roe met [Doe] to
the time she left the [p]arty with [him], approximately twelve
minutes passed.”
At the friend’s apartment, after engaging in small talk, “Jane
Roe asked [Doe] ifhe wanted to ‘hook up.” “John asked Jane if she
was sure she wanted to engage in sexual activity with him, and she
confirmed that she did.” “Several times before and during their
consensual sexual intercourse, [Doe] asked Jane Roe for her con-
sent, and Jane Roe expressed consent.” “At all times during the con-
sensual sexual intercourse, Jane Roe had control over her speech
and bodily movements.” And “[a]t all times during the consensual
sexual intercourse,” Doe believed, based on “Jane Roe’s words and
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21-12592 Opinion of the Court 5
actions,” that Roe “understood the who, what, where, when, why,
and/or how of the sexual interaction.” “After the sexual inter-
course ended, Jane Roe re-dressed on her own, left the [f}riend’s
[a]partment, descended a staircase, and returned to the [p]arty, all
without any assistance from [Doe].”
“Upon her return to the [p]arty, Jane Roe told [one witness]
that she was sexually assaulted by [Doe].” Roe then walked outside.
“Jane Roe’s sister. . . arrived at the outside location where Jane was
and asked what was going on.” By then, Doe had also returned to
the party, and he went outside at the request of another partygoer.
“A female outside asked [Doe] what he put in Jane Roe’s drink.
[Doe] responded that he put ‘everything in her drink.” Doe states
that he “mean[t] that he [had] made the [alcoholic beverage].”
After “Jane Roe’s sister. . . took [Roe] back to [Roe]’s dorm,”
Roe stated that Doe “raped her, gave her hickeys, and bit her lip
and breast.” The sister “took photos of Jane’s alleged injuries.” Roe
filed a police report against Doe the next day. “Jane’s blood was
drawn to test for the presence of drugs,” but “John never saw the
results of the blood test.”
Four days later, “Jane Roe filed a Title IX complaint .. .
against [Doe, ] alleging that [Doe]” had violated the university’s Ti-
tle IX policy. Specifically, “Jane Roe alleged that [Doe] had raped
her on the night of October 31, 2020, when she was incapacitated.”
Doe asserts that the initial steps of the investigation were
“[ijn clear violation of [the university’s Title IX] [p]olicy.” The
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policy provides that “the [university’s] Title IX Coordinator must
provide a written notice of allegations [of sexual misconduct] to the
parties.” It also provides that, “[w]hen the Title IX Coordinator re-
ceives a formal complaint of [s]exual [m]isconduct, the Title IX Co-
ordinator will attempt to schedule an initial meeting with the re-
spondent.” But, according to Doe, Tim Hebson, the Title IX Coor-
dinator, “did not provide [Doe] with a written notice of the allega-
tions made against him by Jane Roe before [he] was interviewed.”
And Hebson “never conducted an initial meeting with [Doe] to no-
tify him of Jane Roe’s complaint and the alleged policy violations
in issue.” Doe does not mention whether he received a written no-
tice or met with Hebson at a later date.
Hebson “assigned [Mallory] Kruntorad as the Title IX Inves-
tigator to investigate the allegations of [Roe’s] [clomplaint.” This
investigation was Kruntorad’s “first Title IX investigation.”
Kruntorad “received little to no training about conducting unbi-
ased and impartial Title IX investigations,” and “lacked the experi-
ence necessary to conduct a Title IX investigation on her own in
accordance with the [p]olicy.” After emailing Doe about the inves-
tigation in early November, Kruntorad “met with [Doe] to take his
statement” in mid-November. “Kruntorad never advised [Doe] of
the specifics of Jane Roe’s allegations against him aside from a claim
that [he] raped Jane Roe.”
Kruntorad interviewed Roe several days later. “Jane Roe
told ... Kruntorad that she was drugged at the [p]arty and could
not consent to the sexual interaction with [Doe].” Roe also stated
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“that when [Doe] got her a drink at the party, [Doe]’s back was to
her and she ‘could not see what was being put in it.” And she stated
that “she started to feel ‘fuzzy’ when walking to the [f]riend’s
[a]partment with [Doe].” On an audio recording of Kruntorad’s in-
terview with Jane Roe, “Kruntorad can be heard stating, ‘I still
think, regardless, you couldn’t give consent.”
Doe asserts that the interview was deficient because
Kruntorad failed to ask Roe certain questions. Kruntorard “failed
to question Jane Roe about whether Jane Roe consumed any alco-
holic beverages prior to the [p]arty.” She “never questioned Jane
Roe about whether she obtained hickeys from sexual activity on
another night.” And she did not “conduct{] follow-up interviews
with Jane Roe or [Doe] during the course of the investigation.”
At the end of an eleven-day-long investigation, Kruntorad
wrote and provided to Doe and Roe a preliminary investigation re-
port. Doe asserts that it “contained highly prejudicial hearsay state-
ments purportedly made by law enforcement about [his] alleged
attack of [Roe] and [his] suspected prior sexual history,” and
“highly prejudicial and inflammatory statements about [Doe]’s
mental health.” Still, one witness had “expressed disbelief that
[Roe] was drugged.” The same witness had “reported that Jane
Roe’s sister . . . stated that Jane Roe may have received the hickeys
on a prior evening.” That witness had also reported that “Jane Roe
told [a third party] that she consented to sex with [Doe].” But “sev-
eral witnesses ... attested to [Roe’s] incapacitation.” And
Kruntorad “found Jane Roe more credible than [Doe]” based on
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the statements of those witnesses. The report was accompanied by
recordings of the interviews Kruntorad had conducted.
Doe and Roe both responded to the report, as the Title IX
policy permits. Roe reiterated “that she believed she was drugged
by [Doe] and that she never got physically sick from excess alco-
hol.” And she “was critical of [the witness] who expressed disbelief
that she was drugged.” Doe “submitted evidence about his [Atten-
tion-Deficit /Hyperactivity Disorder] and [Pervasive Developmen-
tal Disorder-Not Otherwise Specified], which is high functioning
autism.” “This evidence was submitted to explain [Doe]’s rigid
communication style.” According to the complaint, a revised re-
port “found [Doe] to be less credible than Jane Roe based on state-
ments that [Doe] made about immaterial facts.”
Separately, Doe lodged objections with Hebson about the
investigation. Doe contested the jurisdiction of the university over
the complaint. He “questioned the incompleteness and lack of im-
partiality of [the] investigation.” He “express[ed] concern” that
Kruntorad failed to do more “to uncover exculpatory evidence.”
He “requested the full names of all witnesses interviewed in the
investigation,” “the photographs of Jane Roe’s alleged injuries,”
and “Jane Roe’s medical . . . records.” He “objected to the inclusion
of the recordings in the materials to be provided to the Title IX
[hjearing panel” because the report “did not identify .. . the names
of the speakers heard on the recording.” And he asked that the in-
terview summaries of statements made by parties “who would not
be testifying at the hearing be redacted from the investigative
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21-12592 Opinion of the Court 9
report.” The Title IX policy does not appear to require the disclo-
sure of the names of witnesses, but it does prohibit the hearing
panel from “rely[ing] on any statement of [a] party or witness” who
does not submit to cross-examination at the live hearing.
Doe was not satisfied with Hebson’s response. “Hebson re-
fused to provide the names of the witnesses interviewed by ...
Kruntorad,” and did not address Doe’s request for access to photo-
graphs of Roe’s injuries and Roe’s medical records. Hebson also
told Doe that “decisions related to presented information will be
decided upon at the hearing,” a statement that is consistent with a
provision in the policy that the power to determine the admissibil-
ity of evidence resides with the hearing panel.
A live hearing took place before a hearing panel over two
days in early 2021. Roe and her sister testified. “[F]or the first time,
Jane Roe claimed that she consumed alcohol prior to arriving at the
[plarty.” And “for the first time, Jane Roe suggested that her inca-
pacitation was the result of drinking too much alcohol, rather than
being drugged by [Doe].” Roe’s sister testified about “purported in-
juries that Jane Roe sustained” and “testified that Jane Roe passed
out and had no pulse at times outside of the [p]arty.” Doe does not
mention what evidence he presented or whether he testified, but
he alleges that the hearing panel “refused to hear testimony from”
the individual who had written a report on Doe’s behalf about
Doe’s autism. He also alleges that “the Title IX Hearing Panel re-
ceived an un-redacted copy of the Title IX [iJnvestigation [rJeport”
that contained statements from non-testifying witnesses.
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The hearing panel issued a notice of determination “finding
[Doe] responsible for engaging in prohibited conduct” and sus-
pending him for five years. Doe does not describe the notice of de-
termination in much detail, but he alleges that the “[p]anel found
that Jane Roe’s ability to consent to intercourse with John was im-
paired by alcohol consumption.” And the panel “cited Jane Roe’s
testimony that she consumed alcohol before the [p]arty.”
Doe appealed the notice of determination to a university ap-
peal panel. Doe argued that there was “a biased, impartial, [s/c] and
prejudicial investigation process,” and that there were “several pro-
cedural irregularities.” He also submitted “newly discovered evi-
dence”—a letter from a doctor “opin[ing] that many of Jane Roe’s
claims were not medically supportable” because “she could not
pass out and then awaken and be able to text or have lucid conver-
sations with other students, and [because] [Roe]’s explanation
about bruising on her chest could be attributed to prior trauma to
the skin.”
The appeal panel dismissed Doe’s appeal. The “[a]ppeal
[p]anel conceded that there were procedural irregularities during
the investigation process that were inconsistent with the [p]olicy,
largely attributing these [irregularities] to ‘inexperience’ and ‘ad-
justment’ to a new policy.” The appeal panel “did not address why
[the doctor’s] report” would not “affect the outcome of the mat-
ter.” The appeal panel “determined the [proffered] testimony [re-
garding Doe’s autism] was not relevant but failed to explain the
basis of this determination.” And the appeal panel “acknowledged
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that the [h]earing [p]anel received a copy of the full Title IX [i]Jnves-
tigative [rJeport but found that those statements were not consid-
ered by the [hearing [p]anel.”
Doe sued the university, Kruntorad, and Hebson. The com-
plaint alleges that the university violated Title IX, 20 U.S.C.
§ 1681(a), because “gender bias was . . . a motivating factor in [the
university's] erroneous finding against [him]” and because he “was
not treated as favorably as a female would be treated in a Title IX
investigation.” In support of his theory of selective enforcement of
the policy, Doe alleges that “upon review of [the university’s] Clery
statistics it appears that there have been at least seven reported
rapes.” And he alleges that, “[u]Jpon information and belief, the ac-
cused students were all males” and were “treated differently than a
female would be treated if accused of a similar offense.” The com-
plaint also advances state-law claims against the university for
breach of contract and breach of the covenant of good faith and fair
dealing, and against all defendants for negligence. The complaint
requests declaratory and injunctive relief, as well as compensatory
and punitive damages.
Immediately after filing his complaint, Doe filed a motion to
proceed under a pseudonym. The university “d[id] not object to
[the motion], [and] contend[ed]” that the district court should “seal
the record in this case pending the opportunity for counsel to con-
fer regarding entry of an appropriate protective order.” The district
court denied the motion to seal the entire record and denied Doe’s
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12 Opinion of the Court 21-12592
request to proceed under a pseudonym. Doe appealed the order.
And the district court stayed the order pending appeal.
The university moved to dismiss for failure to state a claim.
See FED. R. Civ. P. 12(b)(6). Regarding the Title IX claim, the uni-
versity argued that one of the theories of harm mentioned in the
complaint—liability based on an erroneous outcome motivated by
sex bias—“deviates from the requirements of Title IX” and “has not
been adopted by the Supreme Court or the Eleventh Circuit.” It
argued that the relevant question was instead “whether the plaintiff
has pleaded a plausible set of facts demonstrating that plaintiffs sex
was the reason for the university’s decision.” It argued that, under
either approach, Doe failed to state a claim because he “ha[d] not
alleged facts sufficient to show a particularized causal connection
between the outcome and gender bias.” And it argued that Doe
failed to state a claim under the other theory of harm mentioned in
the complaint—selective enforcement—because the complaint
lacked facts supporting the assertion that Doe “was not treated as
favorably as a female would be treated in a Title IX investigation.”
The district court granted the motion to dismiss. It agreed
with the university that Doe’s theories of harm were at odds with
the text of Title IX, but it “analyze[d] his claim[] under those theo-
ries” anyway because “Doe framed both his complaint and his ar-
gument in response to the motion to dismiss under [those] theo-
ries.” The district court concluded that Doe had “adequately al-
lege[d] that he was innocent and wrongly found to have committed
the offense.” But it explained that the complaint fell short under
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21-12592 Opinion of the Court 13
the erroneous outcome theory because the allegations, taken to-
gether, did not “support[] a reasonable inference that anti-male bias
caused the erroneous outcome.”
The Title IX claim fared no better under the selective en-
forcement theory. The district court explained that “Doe’s state-
ments that a female would be treated more favorably than he was
treated are utterly conclusory.” And “[e]ven taking all of John
Doe’s non-conclusory allegations as true, he cannot show that [the
university] treats sexual assault complaints against female respond-
ents any differently than it treats sexual assault complaints against
male respondents if he cannot point to a female respondent.”
The district court dismissed the Title IX claim without prej-
udice. And it declined to exercise supplemental jurisdiction over
the remaining claims, which were all premised on violations of
state law. It dismissed those claims without prejudice, too. Doe
timely appealed and we consolidated his two appeals.
II. STANDARD OF REVIEW
“We review de novo the dismissal of a complaint under Fed-
eral Rule of Civil Procedure 12(b)(6) for failure to state a claim.”
Feldman v. Am. Dawn, Inc., 849 F.3d 1333, 1339 (11th Cir. 2017).
We review questions of our jurisdiction under the same standard.
United States v. Amodeo, 916 F.3d 967, 970 (11th Cir. 2019).
Il. DISCUSSION
We divide our discussion in two parts. We first explain why
Doe failed to state a claim for a violation of Title IX. Second, we
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explain why the appeal from the order denying the motion to pro-
ceed under a pseudonym is moot.
A. Doe Failed to State a Claim for a Violation of Title IX.
Familiar principles govern a motion to dismiss for failure to
state a claim. “To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (internal quotation marks omitted). Because the pre-
sumption of truth applies only to facts, the court may disregard “la-
bels and conclusions ... couched as ... factual allegation[s].” /d.
(internal quotation marks omitted).
“A claim has facial plausibility when the plaintiff pleads fac-
tual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” /d. “Factual
allegations that are merely consistent with a defendant’s liability
fall short of being facially plausible.” Chaparro v. Carnival Corp.,
693 F.3d 1333, 1337 (11th Cir. 2012) (internal quotation marks omit-
ted). And when determining whether the complaint crosses “the
line between possibility and plausibility of entitlement to relief,”
Bell Atl Corp. v. Twombly, 550 U.S. 544, 557 (2007) (alteration
adopted) (internal quotation marks omitted), “courts may infer
from the factual allegations in the complaint obvious alternative
explanations, which suggest lawful conduct rather than the unlaw-
ful conduct the plaintiff would ask the court to infer,” Am. Dental
Assn v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010)
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21-12592 Opinion of the Court 15
(alteration adopted) (internal quotation marks omitted); see also
Twombly, 550 U.S. at 554 (holding that allegations of wrongdoing
were not plausible because the facts alleged were “consistent with
[liability], but just as much in line with a wide swath of” lawful
conduct).
Before applying these principles to Doe’s complaint, we ad-
dress a threshold question: the appropriate framework for estab-
lishing a violation of Title IX. Title IX provides that “[nJo person
... Shall, on the basis of sex, be excluded from participation in, be
denied the benefits of, or be subjected to discrimination under any
education program or activity receiving Federal financial assis-
tance.” 20 U.S.C. § 1681(a). The Supreme Court has held “that Title
IX is... enforceable through an implied private right of action.”
Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 281 (1998). But
“[njeither the Supreme Court nor this Court has established a
framework for analyzing Title IX challenges to university discipli-
nary proceedings.” Doe v. Valencia Coll. 903 F.3d 1220, 1236 (11th
Cir. 2018).
Doe advances two tests for establishing liability for a univer-
sity disciplinary proceeding, both derived from Yusufv. Vassar Col-
lege, 35 F.3d 709 (2d Cir. 1994)—the “erroneous outcome” test and
the “selective enforcement” test. “Under [the erroneous outcome]
test, a student must show both that he was ‘innocent and wrongly
found to have committed an offense’ and that there is ‘a causal con-
nection between the flawed outcome and [sex] bias.’” Valencia
Coll, 903 F.3d at 1236 (quoting Yusuf, 35 F.3d at 715). Under the
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selective enforcement test, a student must allege and ultimately
prove “that, regardless of the student’s guilt or innocence, the se-
verity of the penalty and/or the decision to initiate the proceeding
was affected by the student’s [sex].” Yusuf 35 F.3d at 715.
The university, by contrast, urges the Court to apply a test
first developed by the Seventh Circuit: “do the alleged facts, if true,
raise a plausible inference that the university discriminated against
[the plaintiff] ‘on the basis of sex’?” Doe v. Purdue Univ., 928 F.3d
652, 667-68 (7th Cir. 2019). This test has been adopted by at least a
plurality of our sister circuits. See, e.g, Doe v. Univ. of Scis., 961
F.3d 203, 209 (3d Cir. 2020); Sheppard v. Visitors of Va. State Univ.,
993 F.3d 230, 236 (4th Cir. 2021); Doe v. Univ. of Ark. - Fayetteville,
974 F.3d 858, 864-65 (8th Cir. 2020); Schwake v. Ariz. Bd. of Re-
gents, 967 F.3d 940, 947 (9th Cir. 2020); see also Doe v. Univ. of
Denver, 1 F.4th 822, 830 (10th Cir. 2021) (agreeing with this ap-
proach and modifying it to suit review of a motion for summary
judgment).
The Seventh Circuit test hews more closely to “the text of
the statute and binding precedent” than does Yusuf Cf Ring v.
Boca Ciega Yacht Club Inc., 4 F.4th 1149, 1158 (11th Cir. 2021) (in
the context of another anti-discrimination statute, preferring a text-
based rule). It mirrors the statutory prohibition of adverse action
“on the basis of sex.” 20 U.S.C. § 1681(a). It incorporates the plau-
sibility standard against which factual allegations must be assessed.
And its use in other circuits “make[s] clear that this [test] is judi-
cially administrable.” Cf Ring, 4 F.4th at 1158. The tests in Yusuf
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by contrast, do not capture the full range of conduct that could lead
to liability under Title IX. They “simply describe [two] ways in
which a plaintiff might show that sex was a motivating factor in a
university’s decision.” Purdue, 928 F.3d at 667; see also Yusuf, 35
F.3d at 715 (“Plaintiffs attacking a university disciplinary proceed-
ing on grounds of [sex] bias can be expected to fall generally within
two categories.”). So, “at bottom[,] [the Yusuftests] ask the same
question,” Doe v. Columbia Coll. Chi, 933 F.3d 849, 854-55 (7th
Cir. 2019), that the Seventh Circuit test “ask[s]... more directly,”
Purdue, 928 F.3d at 667. Indeed, even though some circuits have
treated Yusuf as having established “formal doctrinal tests,” id,
Yusuf itself acknowledges that, “[iJn order to survive a motion to
dismiss, the plaintiff must specifically allege the events claimed to
constitute intentional discrimination as well as circumstances giv-
ing rise to a plausible inference of ... discriminatory intent,” 35
F.3d at 713.
“We agree with the Seventh[] Circuit's approach,” with one
modification, “and see no need to deviate from the text of Title IX.”
Sheppard, 993 F.3d at 236. The Seventh Circuit test asks whether
the facts “raise a plausible inference” of a Title IX violation, Purdue,
928 F.3d at 668 (emphasis added). And, to be sure, the ultimate in-
quiry is the “facial plausibility” of the complaint. But facial plausi-
bility is determined by asking whether the facts alleged “allow[] the
court to draw the reasonable inference that the defendant is liable.”
Igbal, 556 U.S. at 678 (emphasis added). We ask whether the
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18 Opinion of the Court 21-12592
alleged facts, if true, permit a reasonable inference that the univer-
sity discriminated against Doe on the basis of sex.
1. The Alleged Facts Do Not Permit a Reasonable Inference that
the University Discriminated against Doe on the Basis of Sex.
Doe contends that he has pleaded sufficient facts to permit a
reasonable inference of sex discrimination, but we disagree. He as-
serts that the inference is warranted because of the allegations
about procedural irregularities at the investigation and hearing
stages, “public pressure[] to comply with Title IX,” public state-
ments by university officials, and “statistics revealing numerous al-
legations against male students” raise a reasonable inference of sex
discrimination. But, viewed in isolation or collectively, these alle-
gations do not make it plausible that Doe was suspended on the
basis of sex. We address each set of allegations in turn.
a. The Alleged Procedural Irregularities Do
Not Make Sex Discrimination Plausible.
Doe’s argument that “gross procedural deviations” permit a
reasonable inference of sex discrimination fails for two reasons.
First, some of the alleged deviations are either conclusory or in-
complete. Second, the remaining allegations do not permit a rea-
sonable inference of sex discrimination.
Some of Doe’s allegations of procedural irregularities are as-
sertions unsupported by facts. For example, Doe alleges that “[t]he
[iJnvestigation [rJeport contained highly prejudicial hearsay state-
ments purportedly made by law enforcement about [Doe]'s alleged
attack of [Roe] and [Doe]’s suspected prior sexual history.” And he
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21-12592 Opinion of the Court 19
alleges that the report also “contained highly prejudicial and in-
flammatory statements about John’s mental health.” But Doe’s al-
legations that the statements were “prejudicial” and “inflamma-
tory” are “not entitled to the assumption of truth” because these
allegations are “labels” and “[un]supported by factual allegations.”
See Iqbal, 556 U.S. at 678-79 (internal quotation marks omitted);
cl Simpson v. Welch, 900 F.2d 33, 35 (4th Cir. 1990) (explaining
that a complaint was conclusory because the plaintiff “allege[d]
that she was ‘required to work in places and under conditions
where prejudice and bias exist,’ but her complaint nowhere al-
lege[d] any specific oppressive conditions or expressions of ‘preju-
dice and bias’” (citation omitted)). And the inclusion of hearsay in
the investigation report was not necessarily improper because the
Title IX policy provides that the report “may consist of any relevant
information,” including “any . . . evidence obtained during the in-
vestigation,” and the prior sexual conduct of an individual accused
of sexual assault may be relevant. See, e.g., United States v. Breit-
weiser, 357 F.3d 1249, 1254 (11th Cir. 2004) (finding no error in the
admission of the criminal defendant’s history of sexual conduct be-
cause “[t]he evidence was relevant to show [his] motive, intent,
knowledge, plan and preparation, and lack of mistake”).
Doe also counts among the procedural irregularities the de-
cision of “[t]he appellate board . . . [to] reject[] all medical evidence
showing the falsity of [Roe’s] claims,” but Doe does not allege suf-
ficient facts for the Court to suppose that this decision was im-
proper. Under the university’s Title IX policy, “new evidence” may
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20 Opinion of the Court 21-12592
supply the basis for an appeal if that evidence “was not reasonably
available at the time of the determination regarding responsibility”
and “could affect the outcome of the matter.” Doe has not alleged
that the evidence he submitted to the appeal board—a letter from
a doctor—satisfies these requirements. The letter “opined . . . that
[Roe] could not pass out and then awaken and be able to text or
have lucid conversations[,] ... and that [Roe’s] explanation about
bruising on her chest could be attributed to prior trauma to the
skin.” But Doe has not alleged that this evidence “was not reason-
ably available at the time of the determination regarding responsi-
bility.” For example, he did not allege that he was unaware, prior
to the hearing, of the evidence concerning Roe’s injuries or her sis-
ter’s statement about Roe’s lapse of consciousness. Doe alleges
only that “[t]he [a]ppeal [d]ecision did not address why [the letter]
did not rise to the level that would affect the outcome of the mat-
ter’—omitting any discussion of the reasonable availability of the
letter and of the appeal board’s consideration of that requirement.
Doe’s remaining allegations of procedural irregularities do
not support a reasonable inference that the university acted “on the
basis of sex.” See 20 U.S.C. § 1681(a). A deviation from a Title IX
policy is not, in and of itself, a violation of Title IX. Cf Gebser, 524
USS. at 292 (holding that a school’s failure to follow a Title IX reg-
ulation “d[id] not itself constitute ‘discrimination’ under Title IX”).
To be sure, that kind of deviation is at least “consistent with” sex
discrimination. See Twombly, 550 U.S. at 554 (emphasis added).
But allegations that are “merely consistent with” liability “stop[]
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21-12592 Opinion of the Court 21
short of the line between possibility and plausibility.” See id. at 557.
And Doe’s “bare assertion” that the procedural irregularities are at-
tributable to his sex does not make his speculation plausible. See id.
at 555-56; Austin v. Univ. of Or., 925 F.3d 1133, 1138 (9th Cir. 2019)
(explaining that the plaintiffs had failed to state a Title [X claim “be-
cause the [plaintiffs] d[id] not articulate any basis to discern that the
administration or outcomes of the disciplinary proceedings were
flawed due to the [plaintiffs] sex”); Columbia Coll, 933 F.3d at 856
(explaining that alleged restrictions on a respondent’s “access to
documents relevant to the investigation” did not “demonstrate[] an
anti-male bias” in part because “th[e] allegation [was] divorced
from [sex}—Doe d[id] not allege that females accused of sexual as-
sault were allowed to review materials or that only female victims
were allowed to review them”); Yusuf 35 F.3d at 715 (“[A]llega-
tions of a procedurally or otherwise flawed proceeding ... com-
bined with a conclusory allegation of [sex] discrimination [are] not
sufficient to survive a motion to dismiss.”).
Doe’s allegations permit “obvious alternative explanations
... [that] suggest lawful conduct rather than the unlawful conduct
the plaintiff would ask the court to infer.” Am. Dental, 605 F.3d at
1290 (alteration adopted) (internal quotation marks omitted).
Those lawful explanations include ineptitude, inexperience, and
pro-complainant bias. For example, Doe seeks an inference of sex
discrimination from the university’s failure to redact the portions
of the investigative report containing statements from witnesses
who did not testify at the hearing, as the Title IX policy requires.
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22 Opinion of the Court 21-12592
But this failure is “just as much’—if not more—“in line,” see
Twombly, 550 U.S. at 554, with the appeal board’s explanation that
the hearing panel was still adjusting to the three-month-old Title
IX policy. See 85 Fed. Reg. 30026, 30028 (May 19, 2020); 34 C.F.R.
§ 106.45(b)(6)() (effective August 14, 2020, requiring “decision-
maker(s)” to disregard the testimony of witnesses who do not sub-
mit to cross-examination at a live hearing). Indeed, Doe alleges that
the appeal board “found that [the improperly unredacted] state-
ments were not considered by the [h]Jearing [p]anel.” And Doe does
not dispute this finding. This undisputed finding makes the failure
to redact “more likely explained by ... lawful” mistake than un-
lawful bias. See Iqbal, 556 U.S. at 680; Davis ex rel. LaShonda D. v.
Monroe Cnty. Bd. of Educ., 526 U.S. 629, 642 (1999) (explaining
that the Supreme Court has “declined the invitation to impose [Ti-
tle IX] liability under what amount[s] to a negligence standard”).
Similarly, the allegations about deficiencies in the investiga-
tion are more in line with the appeal board’s explanation that the
deficiencies are attributable to the investigator’s “inexperience.”
Doe alleges that “Jane Roe’s complaint against [him] was
[Kruntorad’s] first Title IX investigation.” He alleges that, “prior to
leading the investigation of the [Title IX] [c]omplaint, [Kruntorad]
received little to no training about conducting . . . Title IX investi-
gations.” And he alleges that Kruntorad “lacked the experience nec-
essary to conduct a Title IX investigation on her own in accordance
with the [p]olicy.” So, ineptitude—a sex-neutral explanation that
does not violate Title IX, see Davis, 526 U.S. at 642—is the likelier,
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21-12592 Opinion of the Court 23
more “obvious ... explanation” for the investigator’s departures
from the policy, see Twombly, 550 U.S. at 567.
Moreover, even if evidence of an investigation and hearing
that are “inconsistent with ordinary practice . . . may give rise to an
inference of bias,” Univ. of Ark., 974 F.3d at 865, there is no reason
to suppose that this bias concerned Doe’s sex. To the contrary, Doe
states throughout his complaint that the university favors a//com-
plainants and disfavors a//respondents in Title IX proceedings. For
example, he argues that Samford and other universities have “insti-
tutionalize[d] unfair procedures that lead to unfair and unreasona-
ble punishments of students accused of misconduct.” (Emphasis
added.) He alleges that Samford “announced to its constituency”
that, during its “initial assessment” of a Title IX complaint, “the
well-being of the complainant is paramount.” (Emphasis added.)
And he characterizes this announcement as “exhibit[ing] ... [a]
preference for the alleged victim.” (Emphasis added.) These allega-
tions, taken together with university’s alleged procedural missteps,
might permit a reasonable inference that the decision to suspend
Doe was motivated by a pro-complainant, anti-respondent bias.
But discrimination against respondents is not discrimination “on
the basis of sex,” see 20 U.S.C. § 1681(a), and “does not permit a
reasonable inference of an anti-male bias” “because both men and
women can be respondents,” Doe v. Univ. of Denver, 952 F.3d
1182, 1196-97 (10th Cir. 2020).
Doe counters that discrimination on the basis of sex may be
inferred from the “arguably inexplicable” outcome of the hearing.
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24 Opinion of the Court 21-12592
See Doe v. Oberlin Coll, 963 F.3d 580, 588 (6th Cir. 2020). Under
this theory, “the merits of the decision itself... can support an in-
ference of sex bias” “when the degree of doubt” in “the accuracy of
the disciplinary proceeding’s outcome . . . passes from articulable
to grave.” /d. (internal quotation marks omitted); see also id. (draw-
ing that inference because the hearing panel’s decision, as alleged,
was without an “apparent basis”); Univ. of Ark., 974 F.3d at 865
(holding that the plaintiff stated a Title IX claim in part because “the
allegations in the complaint support[ed] an inference that the hear-
ing panel reached an outcome that was against the substantial
weight of the evidence”). Doe does not explain why this inference
would be “reasonable,” see Jgbal, 556 U.S. at 678, but presumably
the rationale is that the more outrageous the decision is, the less
likely it is that any errors were made in good faith. And when the
erroneous decision ceases to be consistent with good-faith mistake,
the explanation of improper bias becomes sufficiently likely to
cross “the line between possibility and plausibility.” See Twombly,
550 US. at 557. Doe asserts that he is entitled to this inference be-
cause “the underlying investigation was completed in just ten...
days,” the investigator “failed to even attempt to gather potentially
exculpatory evidence,” and “[n]Jeither [Roe] nor the hearing panel
commented on the flat contradiction between [Roe]’s theories of
intoxication.” We disagree.
Doe’s assertions are either irrelevant to his theory or unsup-
ported by the factual allegations in his complaint. The duration and
quality of the investigation are irrelevant because they relate to the
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21-12592 Opinion of the Court 25
pre-hearing procedure, not “the merits of the decision itself.” Ober-
Lin, 963 F.3d at 588. And the complaint establishes that the investi-
gator did in fact uncover and disclose to Doe “potentially exculpa-
tory evidence,” including the statement of a witness “who ex-
pressed disbelief that [Roe] was drugged,” “reported” that “Roe
told [a third party] that she consented to sex with [Doe],” and “re-
ported that Jane Roe’s sister . . . stated that Jane Roe may have re-
ceived the hickeys on a prior evening.”
Doe’s allegations also do not cast “grave” doubt on “the
merits of the decision” of the university, see Oberlin, 963 F.3d at
588, that a preponderance of the evidence supported a finding of
responsibility. According to the complaint, Roe testified “that she
consumed alcohol prior to arriving at the [p]arty,” and she told the
investigator that “she started to feel ‘fuzzy’ when walking to the
[fjriend’s [a]partment with [Doe].” Roe told others immediately af-
ter the sexual encounter “that she was sexually assaulted by [Doe],”
and that he “bit her lip and breast.” Doe does not dispute that, after
the incident, there was “bruising on [Roe’s] chest.” And “several
witnesses ... attested to [Roe’s] incapacitation.” For example,
Roe’s sister testified “that Jane Roe passed out and had no pulse at
times outside of the [p]arty.” To be sure, the hearing panel credited
Roe’s testimony despite her inconsistencies about whether she was
drunk or had been drugged. But under the Title IX policy, incapac-
ity can be caused “by alcohol or drug consumption (whether vol-
untary or involuntary).” (Emphasis added.) So, Roe’s apparent un-
certainty about the cause of her alleged incapacitation has little
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26 Opinion of the Court 21-12592
bearing on whether Roe was in fact incapacitated. And, in the light
of Doe’s statement to partygoers that he had “put ‘everything in
[Roe’s] drink,” Roe’s initial belief that she had been drugged is un-
derstandable, not inexplicable.
One uncited portion of the complaint alleges that the hear-
ing panel made no mention of Doe’s inconsistencies in the notice
of determination, but this allegation does not alter our conclusion.
We regularly permit factfinders to make unstated but implicit cred-
ibility determinations in more formal settings than school discipli-
nary hearings, such as in criminal proceedings. See, e.g., United
States v. Walker, 799 F.3d 1361, 1363 (11th Cir. 2015) (on review of
the denial of a motion to suppress evidence, explaining that we
“give substantial deference to the factfinder’s credibility determina-
tions, both explicit and implicit.” G@nternal quotation marks omit-
ted)). We cannot hold the hearing panel to a higher standard than
we hold district courts. See Bd. of Curators of Univ. of Mo. v. Hor-
owitz, 435 U.S. 78, 88 (1978) (“A school is an academic institution,
not a courtroom or administrative hearing room.”).
b. The Alleged Public Pressure and Public Statements
Do Not Make Sex Discrimination Plausible.
Doe next argues that the complaint contains other facts
from which sex discrimination may reasonably be inferred. In par-
ticular, he mentions an announcement by the university in 2019
that, during “an initial assessment” of a Title 1X complaint, “the
well-being of the complainant is paramount”; that the university
“promoted an ‘It’s on Us Initiative’ ... tout[ing] [that] ‘every 21
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21-12592 Opinion of the Court 27
hours there is a rape on an American college campus’”; and that
the university “was subjected to... pressure” from federal regula-
tors “to comply with Title IX and appear tough on sexual assault.”
Doe contends that these allegations make plausible his belief that
the university yielded to “public pressures to ... appear tough on
sexual assault” by discriminating on the basis of sex.
Again, Doe is mistaken. As already explained, the allegations
in the complaint about the university’s public statements at most
support a reasonable inference of pro-complainant bias, not pro-
female bias. And the assertion that public pressure led the univer-
sity to discriminate on the basis of sex is not supported by facts.
Doe makes a passing reference in the introductory section
of his complaint to the so-called “Dear Colleague Letter” issued by
the United States Department of Education in 2011. That letter “in-
structed universities on how to investigate and resolve complaints
of sexual misconduct under Title IX.” Doe asserts that “[e]duca-
tional institutions . . . continue to overreact to the threat of federal
investigations, sanctions, and lawsuits, in part by discriminating
against male students on the basis of their sex.”
Doe concedes that the Department of Education “formally
rescinded the 2011 Dear Colleague Letter on September 22, 2017,”
long before Doe’s hearing. And it is undisputed that the Depart-
ment promulgated new regulations that require greater procedural
protections for the accused, see 34 C.F.R. § 106.45, and that the uni-
versity has updated its Title IX policy to comply with those regula-
tions. Doe’s allegations about a government policy that has been
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28 Opinion of the Court 21-12592
rescinded and replaced do not assist him in crossing “the line be-
tween possibility and plausibility of entitlement to relief,”
Twombly, 550 U.S. at 557 (alteration adopted) (internal quotation
marks omitted); see also Columbia Coll, 933 F.3d at 855—56 (hold-
ing that “generalized allegations” about “the ‘Dear Colleague’ Let-
ter,” even when combined with allegations of procedural impro-
priety, did not permit a “plausibl[e] infer[ence] that [the] investiga-
tion or adjudication was tainted by an anti-male bias”).
c. The Clery Statistics Do Not Change
the Plausibility of the Title [IX Claim.
The allegations about the university’s Clery report do not
assist Doe in stating a Title IX claim because the contents of the
report are “factually neutral.” See Twombly, 550 U.S. at 557 n.5. In
his complaint, Doe alleges that that “upon review of [the univer-
sity’s] Clery statistics it appears that there have been at least seven
reported rapes and nine reported cases of fondling”; and that,
“[ujpon information and belief,” “all” “the accused students were
... males.” But, as the district court explained, “[t]he Clery [rJeport
provides statistics of [on-campus] crimes reported to [Samford’s
Department of Public Safety and Emergency Management], local
law enforcement agencies, and Campus Security Authorities.” (In-
ternal quotation marks omitted.) “The report does not speak to the
sex of the person reporting the offense, the sex of the person ac-
cused of the offense, whether any school disciplinary proceedings
occurred as a result of the report, or what the result of the school
disciplinary proceedings was.” Assuming—as we must—that Doe’s
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21-12592 Opinion of the Court 29
“information and belief” allegation is truthful, nothing in the Clery
report supports an inference that the university opened a single in-
vestigation into one of those reported accusations, much less that
the university treated a male respondent worse than it treated a
female respondent or female accuser.
To be clear, our conclusion that Doe has failed to state a
claim rests on an assessment of the plausibility of sex discrimina-
tion, and we “do[] not impose a probability requirement.” See
Twombly, 550 U.S. at 556. Doe’s assertion of sex discrimination is
implausible because some allegations “are no more than conclu-
sions, [and] are not entitled to the assumption of truth.” /gbal, 556
USS. at 679. Other allegations “are merely consistent with [the uni-
versity’s] liability, so they stop[] short of the line between possibil-
ity and plausibility of entitlement to relief.” See id. at 678 (internal
quotation marks omitted). Still other allegations establish “more
likely explanations” for the university’s conduct, including inexpe-
rience, ineptitude, and sex-neutral pro-complainant bias. See id. at
681. And “[a]s between th[ose] obvious alternative explanation[s]
for the [university’s conduct], and the purposeful, invidious dis-
crimination [Doe] asks us to infer, [sex] discrimination is not a plau-
sible conclusion.” See id. at 682 (citation and internal quotation
marks omitted).
2. The Title IX Claim Also Fails Under the Yusuf Tests.
Because the two Yusuftests are no more than fact-specific
applications of the Seventh Circuit test, see Purdue, 928 F.3d at 667,
it follows from Doe’s failure to satisfy the latter that Doe has failed
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30 Opinion of the Court 21-12592
to satisfy the former as well. Doe has not satisfied the erroneous
outcome test because he has not “allege[d] particular circum-
stances suggesting that [sex] bias was a motivating factor behind
the erroneous finding.” See Yusuf 35 F.3d at 715. Instead, the
“complaint itself identifies a number of other, [sex]-neutral factors
that may have led to the panel’s determination.” See id at 714.
Nor has Doe satisfied the selective enforcement test. To
state a claim under that test, a plaintiff must plausibly allege “an
inconsistency” between his treatment by the university and the
university's treatment of a similarly situated member of the other
sex. See id. at 716. Doe relies on the Clery report for that purpose,
but that report does not contain sufficient information to identify a
comparator and determine whether “the severity of the penalty
and/or the decision to initiate the proceeding was affected by the
student’s [sex].” See id. at 715. “Without nonconclusory allegations
that the male students were treated any differently than similarly
situated female students based on sex, the selective enforcement
theory fails.” Austin, 925 F.3d at 1138.
B. The Appeal from the Denial of the Motion To Proceed under
a Pseudonym is Moot.
Our affirmance of the dismissal of the Title IX claim renders
moot the appeal from the denial of the motion to proceed under a
pseudonym. Because Doe has not argued that the district court
erred by declining to exercise supplemental jurisdiction after dis-
missing the Title IX claim, he has forfeited any such argument. See
Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir.
USCA11 Case: 21-12592 Date Filed: 03/24/2022 Page: 31 of 60
21-12592 Opinion of the Court 31
2014). And with no litigation remaining in the district court, we are
unable to “give [Doe] meaningful relief’ with respect to the appeal
from the denial of the motion to proceed under a pseudonym. See
Friends of the Everglades v. S. Fla. Water Mgmt. Dist., 570 F.3d
1210, 1216 (11th Cir. 2009) (internal quotation marks omitted).
That appeal is moot.
IV. CONCLUSION
We AFFIRM the judgment in favor of the university. We
DISMISS AS MOOT the appeal from the denial of the motion to
proceed under a pseudonym.
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21-12840 JORDAN, J., Concurring 1
JORDAN, Circuit Judge, concurring:
[join Parts I, Il, I1.B, and IV of the majority opinion. As to
Part III.A, I concur in the judgment. I agree that Mr. Doe has failed
to allege facts that would allow a court to plausibly infer that
Samford University discriminated against him “on the basis of sex”
in violation of Title IX, 20 U.S.C. § 1681(a). But I have different
thoughts about how to apply Bell Atlantic Corp. v. Twombly, 550
U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), in a case
like this one.
I
“To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, ‘to state a claim to relief
that is plausible on its face.” Jgbal, 556 U.S. at 678 (citing Twombly,
550 U.S. at 570). As the majority notes, this pleading standard is by
now a familiar one. Familiarity, however, does not always mean
clarity. Let me try to explain the issues as I see them,
acknowledging that I am not the first to flag them. See, eg,
McCauley v. City of Chicago, 671 F.3d 611, 620-29 (7th Cir. 2011)
(Hamilton, J., dissenting in part).
A
The Supreme Court has told us that plausibility means
something more than possibility or speculation but something less
than probability: “The plausibility standard is not akin to a
‘probability requirement,’ but it asks for more than a sheer
possibility that a defendant has acted unlawfully.” /gbal, 556 U.S. at
USCA11 Case: 21-12592 Date Filed: 03/24/2022 Page: 34 of 60
2 JORDAN, J., Concurring 20-10709
678. See also Twombly, 550 U.S. at 556-57. On the surface, this
seems like an acceptable framing of the pleading standard, but
there are linguistic problems when one digs a bit deeper.
First, the word plausible connotes a level of uncertainty—
and even doubt—about the truthfulness of the claim. Second,
plausible and probable mean essentially the same thing. See, e.g.,
2 BLACK’S LAW DICTIONARY 1392, 1454 (11th ed. 2019) (defining
plausible as “[c]onceivably true or successful” and “possibly correct
or even likely[,] reasonable” and probable as “[l]ikely to exist, be
true or happen”); THE AMERICAN HERITAGE DICTIONARY OF THE
ENGLISH LANGUAGE 1346, 1397 (4th ed. 2006) (defining plausible as
“[sleemingly or apparently valid, likely, or acceptable[,] credible”
and probable as “[ljikely to happen or to be true” and “likely but
uncertain, plausible’) (emphasis added); 2 SHORTER OXFORD
ENGLISH DICTIONARY 2238, 2352 (5th ed. 2002) (defining plausible
as “seemingly reasonable or probable (though speculative),” and
probable as “demonstrable, provable...[a]lso plausible’) (emphases
added). They are even treated as synonyms of each other. See
BURTON’S LEGAL THESAURUS 407, 426 (3d ed. 1998) (using
“probabilis’ [a Latin word meaning probable] as a synonym of
plausible and using “plausible” as a synonym of probable). The
Supreme Court has, unfortunately, failed to acknowledge that
there is “an incredibly thin line” between plausible and probable.
See Matthew Fischer, Ashcroft v. Igbal: The Supreme Court's
Attempt to Clarify Bell Atlantic_v. Twombly 18 (No. 2)
USCA11 Case: 21-12592 Date Filed: 03/24/2022 Page: 35 of 60
21-12840 JORDAN, J., Concurring 3
Competition, J. Anti. & Unfair Comp. L. Sec. St. B. Cal. 56, 73
(2009).
Maybe the Supreme Court thinks that any difficulties in
figuring out the daylight between plausible and probable can be
solved by reliance on judicial experience and common sense. See
Igbal, 550 U.S. at 679. Yet these traits—which are not objectively
uniform across the federal judiciary—have their own analytical
difficulties. See Muransky v. Godiva Chocolatier, Inc., 979 F.3d
917, 965 n.5 (11th Cir. 2020) (en banc) (Jordan, J., dissenting).
To make things more complicated, in several cases decided
after Twombly and/or Iqbal, the Supreme Court has reaffirmed
that Rule 8 only requires a short and plain statement of the claim.
See Erickson v. Pardus, 551 U.S. 89, 93 (2007) (explaining that
Twombly does not constitute a return to the old fact-pleading
system and that a complaint “need only ‘give the defendant fair
notice of what the . . . claim is and the grounds upon which it
rests”) (quoting Twombly, 550 U.S. at 555); Johnson v. City of
Shelby, 574 U.S. 10, 12 (2014) (“Petitioners stated simply, concisely,
and directly events that, they alleged, entitled them to damages
from the city. Having informed the city of the factual basis for their
complaint, they were required to do no more to stave off threshold
dismissal for want of an adequate statement of their claim.”).
Exactly what these cases mean in the Twombly/ Iqbal universe is
not exactly clear. But I think they at least caution against reading
the pleading standard as overly demanding.
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4 JORDAN, J., Concurring 20-10709
B
Then there is the Supreme Court’s statement in Twombly,
550 US. at 557, repeated in /gba/, 556 U.S. at 678, that “[flactual
allegations that are merely consistent with a defendant’s liability
fall short of being facially plausible.” Chaparro v. Carnival Corp.,
693 F.3d 1333, 1337 (11th Cir. 2012) (internal quotations and
citations omitted). That concept is sometimes referred to as
“obvious alternative explanations” for the challenged conduct. See
Maj. Op. at 23.
In my view, this concept is difficult to justify at the pleading
stage, where proof of the claim is not required. “[O]ne cannot at
the same time rationally dispense with a ‘probability requirement’
to determine ‘plausibility’ yet conclude that something is not
‘plausible’ because there are other ‘more likely explanations.’ No
sense can be given of ‘more likely’ except ‘more probable.”
Ronald J. Allen & Alan E. Guy, Conley as a Special Case of
Twombly and Igbal: Exploring the Intersection of Evidence and
Procedure and the Nature of Rules, 115 Penn St. L. Rev. 1, 37
(2010). See also Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th
Cir. 2010) (“[I]t is not necessary to stack up inferences side by side
and allow the case to go forward only if the plaintiff's inferences
seem more compelling than the opposing inferences.”).
As I see it, the problem is particularly acute in a case alleging
discrimination, where the critical issue is often the defendant's
intent and the proof on that issue is often circumstantial. Imagine
a Title VII case where a plaintiff alleges in his racial discrimination
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21-12840 JORDAN, J., Concurring 5
complaint (a) that his employer, when terminating him, said that
the dismissal was due to his poor job performance (his division’s
financial performance was below expected standards), and (b) that
this purported reason was pretext for racial discrimination
(although his division’s performance was below par compared to
other years, it was the highest (in a down year for the company)
compared to all other divisions, whose supervisors remained
employed). In such case, I suggest that it is virtually impossible for
a court to figure out, at the pleading stage, which factual assertion
is the more likely (i.e., more plausible) one. On the one hand, the
plaintiffs division did perform poorly, as the employer asserted.
On the other hand, the plaintiffs division was the best performer
when compared to all the other divisions, and none of the other
division supervisors lost their jobs. If a Title VII plaintiff is not
required to plead a prima facie case of discrimination in his
complaint to survive a motion to dismiss, see Swierkiewicz v.
Sorema N.A., 534 U.S. 506, 515 (2002), then how is a court
supposed to figure out at the pleading stage which explanation is
the more plausible in this hypothetical? Cf Doe v. Univ. of
Denver, 1 F. 4th 822, 830-36 (10th Cir. 2021) (addressing, at
summary judgment, pretext in a Title IX discrimination case
brought by a male student charged with sexual misconduct);
Garrett v. Univ. of S. Fla. Bd. of Trs., 824 F. App’x 959, 966-67 (11th
USCA11 Case: 21-12592 Date Filed: 03/24/2022 Page: 38 of 60
6 JORDAN, J., Concurring 20-10709
Cir. 2020) (addressing, at summary judgment, pretext in a Title IX
retaliation claim brought by a victim of sexual assault). !
In response to this quandary, one commentator has
suggested that courts use a “confidence analysis” in cases involving
circumstantial allegations. See Luke Meier, Probability,
Confidence, and Twombly’s Plausibility Standard, 68 S.M.U. L.
Rev. 331, 380-81 (2016). But that metric—though analytically
interesting—does not provide any practical or helpful guidance to
courts on the ground. If a court uses the “merely consistent”
concept, it will in essence be deciding the issue of pretext at the
motion to dismiss stage, where a complaint must be allowed to
proceed “even if it strikes a savvy judge that actual proof of [the
alleged] facts is improbable, and that a recovery is very remote and
unlikely.” Twombly, 550 U.S. at 556 (internal quotation marks and
citation omitted).
Given that the Supreme Court has used the “merely
consistent” concept in a case involving claims of intentional
discrimination, see Jgba/, 556 U.S. at 678, and that our circuit has
followed suit in some cases, see, e.g., Am. Dental Ass’n v. Cigna
Corp., 605 F.3d 1283, 1290 (11th Cir. 2010), I do not fault the
majority for doing the same here. See Maj. Op. at 23. But that does
not mean that the “merely consistent” formulation is appropriate
or workable in a case like this one. For one thing, it conflicts with
our obligation to draw reasonable inferences in the plaintiff's favor
1 More on Swierkiewicz a bit later.
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21-12840 JORDAN, J., Concurring 7
at the Rule 12(b)(6) stage even when the competing inferences are
equally plausible. See, e.g., Worthy v. City of Phenix, Ala., 930 F.3d
1206, 1214 (11th Cir. 2019) (“[A]t [the motion to dismiss] stage,
when there are two equally plausible ways to read a complaint, we
should adopt the reading that is most favorable to [the plaintiff].”).
Indeed, several circuits have cautioned against relying on
the “merely consistent” (i.e., “alternative explanation”) concept in
Title IX cases. For example, in Doe v. Columbia University, 831
F.3d 46, 57 (2d Cir. 2016), the Second Circuit rejected the district
court’s conclusion that any alleged bias in favor of the complainant
“could equally have been—and more plausibly was—prompted by
lawful, independent goals, such as a desire. . .to take allegations of
rape on campus seriously and to treat complainants with a high
degree of sensitivity.” It emphasized that a court is “obligat[ed] to
draw reasonable inferences in favor of the sufficiency of the
complaint,” and explained that “/gba/ does not require that the
inference of discriminatory intent supported by the pleaded facts
be the most plausible explanation of the defendant’s conduct. It is
sufficient if the inference of discriminatory intent is plausible.” /d.
The Sixth and Ninth Circuits have taken similar approaches. See
Doe v. Baum, 903 F.3d 575, 586 (6th Cir. 2018) (“[O]ne plausible
explanation is that the Board discredited all males, including Doe,
and credited all females, including Roe, because of gender bias.”);
Schwake v. Ariz. Bd. of Regents, 967 F.3d 940, 948 (9th Cir. 2020)
(“Sex discrimination need not be the only plausible explanation or
even the most plausible explanation for a Title IX claim to
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8 JORDAN, J., Concurring 20-10709
proceed.”). These cases make sense to me, and I would likewise
not use the “merely consistent” concept here.
I
I agree with the majority’s articulation of the substantive
Title IX standard. See Maj. Op. at 16-19. This standard is not
inconsistent with the recent decision in Bostock v. Clayton Cnty.,
140 S. Ct. 1731, 1739 (2020) (using but-for causation for Title VID,
as some courts have noted. See Sheppard v. Visitors of Va. St.
Univ., 993 F.3d 230, 236-37 (4th Cir. 2021). The more difficult
question is whether Mr. Doe’s complaint alleges a plausible claim
of sex discrimination under Title IX.
A
In Twombly, 550 U.S. at 563, the Supreme Court cited its
prior decision in Swierkiewicz with approval. Swierkiewicz held
that a Title VII plaintiff need not allege a prima facie case of
discrimination to survive a motion to dismiss, and that the
complaint in that case “easily” stated a claim for relief. See 534 U.S.
at 514-15. In his complaint, the plaintiff in Swierkiewicz “alleged
that he had been terminated on account of his national origin in
violation of Title VII and on account of his age in violation of the
ADEA.” /d. at 514. The complaint “detailed the events leading to
his termination, provided relevant dates, and included the ages and
nationalities of at least some of the relevant persons involved with
his termination. These allegations g[ave] [the defendant] fair notice
of what [the plaintiffs] claims [were] and the grounds on which
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21-12840 JORDAN, J., Concurring 9
they rest[ed]. In addition, they state[d] claims upon which relief
could be granted under Title VII and the ADEA.” /d. (citations
omitted).?
Aside from conclusory claims that his demotion and
termination had been on account of his national origin and age, the
plaintiff in Swierkiewicz alleged that he had done his job in a
“satisfactory and exemplary manner;” that his replacement after
the demotion was “far less experienced and less qualified;” that his
supervisor had said he wanted to “energize” the department in
question; that he had been “isolated” after his demotion; that there
were several years of “ongoing discrimination on account of his
national origin and age;” that his grievances were not addressed or
responded to; that the company had “no valid basis” to fire him;
and that his national origin and age were “motivating factors” in
the termination decision. See Complaint at 4-6 F¥ 18, 22, 23, 29,
31, 36, 37, Swierkiewicz v. Sorema, N.A., 86 Fair Empl.Prac.Cas.
(BNA) 1324 (S.D.N.Y. 2000). Because the complaint in
Swierkiewicz—which was relatively sparse—was sufficient to state
plausible discrimination claims under Title VII and the ADEA,
figuring out the sufficiency of Mr. Doe’s Title IX discrimination
claim is no easy matter.
2 For ease of reference, a copy of the complaint in Swierkiewiczis attached as
an appendix.
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10 JORDAN, J., Concurring 20-10709
In most cases, procedural irregularities in a university’s
investigation of a sexual assault claim and an alleged erroneous
outcome in a subsequent disciplinary proceeding will not, by
themselves, make out a plausible Title IX claim of sex
discrimination. See Yusuf v. Vassar Coll, 35 F.3d 709, 715 (2d Cir.
1994) (“[A]llegations of a procedurally or otherwise flawed
proceeding that has led to an adverse and erroneous outcome
combined with a conclusory allegation of gender discrimination is
not sufficient to survive a motion to dismiss.”). See also Doe v.
Univ. of Dayton, 766 F. App’x 275, 281-82 (6th Cir. 2019). But as
the number of irregularities increases, or the irregularities become
more serious (for example, a failure to interview the accused’s
witnesses), or the erroneous outcome becomes more glaring, the
needle starts moving toward plausibility. See Doe v. Oberlin Coll,
963 F.3d 580, 588 (6th Cir. 2020) (“[W]hen the degree of doubt
passes from articulable to grave, the merits of the decision itself, as
a matter of common sense, can support an inference of sex bias.”)
(internal quotation marks omitted). Accord Menaker v. Hofstra
Univ., 935 F.3d 20, 35 (2d Cir. 2019) (criticizing the district court for
not adhering to the Rule 12(b)(6) standard in “minimiz[ing] or
explain[ing] away...clear procedural irregularities”); Doe v. Miami
Univ., 882 F.3d 579, 593-94 (6th Cir. 2018) (concluding that the
plaintiffs allegation that “every male student accused of sexual
misconduct...was found responsible for the alleged violation”
showed a “pattern of gender-based decision-making” in the
university's Title IX investigations); Doe v. Purdue Univ., 928 F.3d
652, 669 (7th Cir. 2019) (ruling that a Title IX investigator’s basis
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21-12840 JORDAN, J., Concurring 11
for believing the complainant was “perplexing” given that she
never spoke with the complainant directly); Doe v. Univ. of Ark.-
Fayetteville, 974 F.3d 858, 864 (8th Cir. 2020) (concluding that the
hearing panel’s decision to credit the complainant’s claim that she
was incapacitated and therefore could not consent was “against the
substantial weight of the evidence”); Schwake, 967 F.3d at 949
(finding sex discrimination in part due to the university’s “gender-
based decision[-]Imaking against male respondents in sexual
misconduct disciplinary proceedings”).
Here, it seems to me that Mr. Doe’s collective allegations of
procedural irregularities fall short of the plausibility mark. See Doe
v. Princeton Univ., 790 F. App’x 379, 384 (3d Cir. 2019) (plaintiff's
grievances about the investigative process were insufficient to
make out a Title IX discrimination claim because none of the facts
alleged “indicat[ed] that any of [the] alleged unfavorable treatment
was due to his sex”). Starting with the purported lack of notice,
Mr. Doe was told before his first interview that there was an
allegation that he had raped Ms. Roe. Although Mr. Doe was not
provided with specifics, he knew what the basic charge was before
he met with the investigator for his interview. As to the allegedly
inflammatory statements made by law enforcement (the substance
of which Mr. Doe did not include in his complaint), I do not view
their inclusion in the investigative report as an irregularity. Simply
stated, there is no prohibition in Samford’s Title IX policy against
the inclusion of hearsay in that type ofreport. With respect to the
rejection of the medical evidence by the appeal board, I agree with
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12 JORDAN, J., Concurring 20-10709
the majority that Mr. Doe has not alleged (i.e., explained) why that
evidence was not reasonably available to him before the hearing.
As a result, there is no reasonable inference that the appeal board
committed an error in refusing to consider the evidence. The
failure to redact the portions of the investigative report containing
the statements of witnesses who did not testify at the evidentiary
hearing is more concerning. But the appeal board attributed that
irregularity to inexperience and adjustment to the new Title IX
policy, and Samford’s policy did not permit consideration of those
statements.’
Turning to the allegedly erroneous outcome, Samford’s
decision finding Mr. Doe responsible does not appear—based on
the allegations in the complaint—to be glaringly wrong. Ms. Roe
testified at the hearing and explained that her ability to consent to
intercourse with Mr. Doe was impaired by alcohol consumption.
Although Ms. Roe had initially claimed that she had been drugged
by Mr. Doe, the hearing panel knew about the prior inconsistent
claim and was able to judge the credibility of Ms. Roe (and, for that
matter, Mr. Doe). Cf Rossley v. Drake Univ., 979 F.3d 1184, 1193
(8th Cir. 2020) (“We conclude. . .that whatever the deficiencies in
3 Mr. Doe does not allege that the hearing panel or the appeal board relied on
the statements of the witnesses who did not testify, and Samford’s Title IX
Policy expressly prohibits the panel and the board from relying on those state-
ments. See D.E. 1-1 at 35. Furthermore, the investigative report included not
only the statements of witnesses who confirmed Ms. Roe’s account of the in-
cident, but also the statements of witnesses who discredited Ms. Roe’s claim
of incapacitation. See D.E. 1 at 19 9141.
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21-12840 JORDAN, J., Concurring 13
[the] investigation, they did not result in findings so devoid of
substantive content as to be unworthy of credence.”).4
Mr. Doe also alleged that there had been seven reported
rapes on campus, that all of the accused students in those cases
were male, and that they were treated differently than a female
would have had she been charged with a similar offense. The
majority says that alleged pro-complainant bias does not lead to an
inference of discrimination on the basis of sex because both men
and women can be accused of assault. See Maj. Op. at 25. I’m not
sure that this is necessarily correct at the pleading stage if all of the
accused students at Samford have so far been male. Nevertheless,
I concur with the majority’s ultimate assessment of these
allegations for the simple reason that Samford does not decide who
is going to make a sexual assault complaint. In other words, the
sex of those who file such complaints is out of Samford’s hands.
And that makes it very hard to figure out how similarly situated
females would be treated if they were accused of sexual assault. See
Doe v. Trs. of Boston Coll, 892 F.3d 67, 91-92 (1st Cir. 2018) (“The
4Mr. Doe claims that the investigator’s statement to Ms. Roe during her initial
interview—‘T still think, regardless, you couldn’t give consent”—is evidence
of gender bias against him. See D.E. 1 at 18 4 131. But the investigator explic-
itly found Ms. Roe more credible than Mr. Doe because she had “several wit-
nesses who attested to her incapacitation.” See D.E. 1 at 19 9143. The hearing
panel’s agreement and the appeal board’s affirmance of the investigator's cred-
ibility determination is not against the substantial weight of the evidence given
the allegations in the complaint.
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14 JORDAN, J., Concurring 20-10709
gender of the students accused of sexual assault is the result of what
is reported to the [uJniversity, and not the other way around.”).
Finally, Mr. Doe cites to other evidence to provide
background for his claim of discrimination under Title IX. Many
of our sister circuits have concluded that evidence not specifically
pertaining to the plaintiff's own Title IX investigation and hearing
may be relevant in assessing the sufficiency of a complaint. This
evidence can include financial pressure from the government or
from interest groups, scrutiny from the media, and statements or
actions taken by the university, its employees, or fellow students
indicating a potential gender bias against students accused of sexual
misconduct. ‘Title IX plaintiffs typically present this type of
evidence to contextualize the actions taken by school officials
during the investigation and/or hearing. A review of Title IX cases,
however, leads me to conclude that the background evidence cited
in Mr. Doe’s complaint—the university magazine article, the
documentary, the “It’s on Us” campaign, and the Clay statistics—
does not make Mr. Doe’s claim of discrimination plausible. See
eg, Purdue Univ., 928 F.3d at 668-670 (concluding that
government financial pressure and a post with a link to an article
blaming men for the problem of sexual assault gave the plaintiff “a
story about why [the university] might have been motivated to
discriminate against males accused of sexual assault,” but could not
“standing alone” get him “over the plausibility line”); Baum, 903
F.3d at 586 (reasoning that the Department of Education’s ongoing
investigation into the university “provide[d] a backdrop that, when
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21-12840 JORDAN, J., Concurring 15
combined with other circumstantial evidence of bias. . .gives rise
to a plausible claim”); Columbia Univ., 831 F.3d at 56-59
(concluding that intense public scrutiny and media attention of the
university's handling of sexual assault complaints could lead to pro-
female complainant bias).
B
So what is necessary to allege a plausible claim of sex
discrimination in violation of Title IX? I agree with the majority
that the text of Title IX requires allegations that would allow a
court to reasonably infer that Samford made its decision “on the
basis of sex.” I also agree that based on Mr. Doe’s complaint we
cannot plausibly infer sex discrimination by Samford in this case.
My discussion below discusses why our sister circuits in Purdue
University, Baum, and Columbia University ruled that the plaintiffs
in those cases did cross the plausibility threshold. My hope is that
the contrast will shed some light on the amorphous plausibility
standard in the Title IX setting.
In Purdue University, the Seventh Circuit was persuaded by
the plaintiffs allegation that the Title IX investigator chose to credit
the complainant’s account of the incident without talking to her
directly. See 928 F.3d at 669. An investigator can of course make
credibility determinations, but the Seventh Circuit found the
investigator's “basis for believing [the complainant]... perplexing,
given that [the investigator] never talked to [the complainant] and
instead relied on a letter relaying the complainant’s account
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16 JORDAN, J., Concurring 20-10709
prepared by the director of the university’s center for victims of
sexual violence. Jd.
The allegations about the hearing also suggested that the
panel was biased against the plaintiff, who was male. Crediting the
plaintiffs allegations as true, the Seventh Circuit noted that “the
majority of the panel members appeared to credit [the
complainant] based on her accusation alone, given that they took
no other evidence into account.” See id The plaintiff was also
denied the opportunity to present any witnesses in his favor,
including an alibi witness, and he was unable to present evidence
of a potential source of the complainant’s anger toward him: his
reporting of her suicide attempt while they were dating. See id.
These allegations, viewed within the context of financial pressure
from the government and a post by a university organization
seemingly blaming men as a class for the problem of sexual assault,
led the Seventh Circuit to conclude that the plaintiff had pled a
plausible claim of discrimination on the basis of sex. See id at 667—
670.
The Sixth Circuit in Baum was concerned, based on the
allegations, that the hearing panel found the plaintiff culpable of
violating the university’s policy even though the Title IX
investigator had initially found in his favor. See 903 F.3d at 586. A
difference in credibility determinations from the investigator and
panel was not ipso facto evidence of sex discrimination, but the fact
that the investigator did her work over three months, “during
which she personally interviewed 23 witnesses and reviewed
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21-12840 JORDAN, J., Concurring 17
evidence such as medical records, text messages, and video
recordings,” and that the subsequent university disciplinary panel
disregarded or placed little value on the findings of the report, gave
the Sixth Circuit pause. See Complaint at 7 ¥ 30, Doe v. Baum, 227
F. Supp. 3d 784 (E.D. Mich. 2017). The Sixth Circuit noted that the
hearing panel “credited exclusively female testimony...and
rejected all of the male testimony” and explained its decision by
saying that the accused’s witnesses (who were all male) “lacked
credibility because many of them were fraternity brothers.” Baum,
903 F.3d at 586. Given that the Sixth Circuit was required to
“view[ ] this evidence in the light most favorable to [the plaintiff],”
gender bias was certainly one plausible explanation. /d.
In Columbia University the Second Circuit spent
considerable time detailing the mounting pressure the university
was experiencing when it made its determination against the
plaintiff. In describing the university’s alleged “pro-female, anti-
male bias,” the Second Circuit concluded that the “biased attitudes
were, at least in part, adopted to refute criticisms circulating in the
student body and in the public press that [the university] was
turning a blind eye to female students’ charges of sexual assaults by
male students.” Columbia Univ., 831 F.3d at 56. It therefore
concluded that the failure of the investigator and hearing panel to
seek out the plaintiffs corroborating witnesses, and act in
accordance with the procedural policies of Title IX disciplinary
proceedings, could be the result of bias and made the
discrimination claim plausible. See id. at 56-57.
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18 JORDAN, J., Concurring 20-10709
The allegations in these three cases do not set a floor for
plausibility in the Title IX context. But the cases taken collectively,
begin to piece together the sort of mosaic that will suffice. See also
Univ. of Ark.-Fayetteville, 974 F.3d at 864-66 (Title IX plaintiff
sufficiently made out a claim of sex discrimination by alleging that
the hearing panel’s decision was against the weight of the
substantial evidence, that lesser sanctions were imposed in order to
avoid negative media attention and to portray a stricter approach
to sexual assault, and that university was under pressure on
multiple fronts to find males responsible for sexual assaults).
Il
I agree with the majority that Mr. Doe has not alleged
sufficient facts to meet the plausibility standard. I do not, however,
believe that Twombly and Iqbal require plaintiffs to rule out in
their complaints plausible alternative reasons for the misconduct
they challenge. Title IX plaintiffs need only allege facts that would
allow us to infer a plausible claim of sex discrimination.
> With respect to Mr. Doe’s claim of selective enforcement, it too fails to cross
the plausibility threshold. There is no allegation that Samford, in addition to
yielding to external pressures, failed to investigate female students accused of
the same misconduct, as in Doe v. University of Sciences, 961 F.3d 203, 210
(3d Cir. 2020).
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USCA11 Case: 21-12592
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
AKOS SWIERKIEWICZ,
Plaintiff,
V. NO. 99 Civ. 12272 (LAP)
SOREMA, N.A.,
Defendant.
AMENDED COMPLAINT
Akos Swierkiewicz, amends his complaint as a matter of course to state claims for welt Ee
against defendant, SOREMA, N.A., for violations of the New York State Executive Law, 3
§296 et seq. and the Administrative Code of the City of New York, §8-1 07 et seq.
1. This is an employment discrimination action brought by Akos
Swierkiewicz to recover damages againsi SOREMA N.A. (“SOREMA’) for the violation
of his rights under Title VII of the 1964 Civil Rights Act, 42 U.S.C. §2000e ef. seq. (“Title
Vil"); the Age Discrimination in Employment Act of 1967, 29 U.S.C. §621 et seq.
(“ADEA’), the New York State Executive Law, §296 et. seq, (the "Human Rights Law");
and the Administrative Cade of the City of New York, §8-107 et. sea. (the "City Law’).
URISDICTION AND VENUE
JURISDICTION AND VENUE
9. _ Jurisdiction over Mr. Swierkiewicz’s Title VII claim is conferred by vw
42 U.S.C. §2000e-5(f)(3). Jurisdiction over his ADEA claim is conferred by 29 U.S.C.
Page: 52 of 60
Date Filed: 03/24/2022
USCA11 Case: 21-12592
§626(c)(1). Supplemental jurisdiction over his Human Rights Law and City Law claims
is conferred by 29 U.S.C. §1367(a).
3. Venue is proper in this district pursuant to the general venue
statute, 28 U.S.C. §1391, and under Title VIl's special venue statute, 42 U.S.C.
§2000e-5(f)(3).
PARTIES
4, Plaintiff, Akos Swierkiewicz, resides at 821 Hudson Drive, Yardley,
Pennsylvania 19067.
5. Defendant SOREMA is a New York corporation headquartered at
499 Water Street, 20° Floor, New York, New York 10038.
6. At all times relevant hereto, SOREMA has resided and conducted
business in this judicial district.
7. At all times relevant hereto, SOREMA has been an employer within
the meaning of Title VIl and the ADEA.
EXHAUSTION OF ADMINISTRATIVE REMEDIES
8. On or about July 11, 1997 Mr. Swierkiewicz filed a Charge of
Discrimination against SOREMA with the Philadelphia District Office of the Equal
Employment Opportunity Commission ("EEOC"), Charge No. 170971447, charging it
with unlawful national origin and age discrimination in connection with his dismissal
from employment.
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USCA11 Case: 21-12592
9. By notice dated May 3, 1999 and which he received on May 5,
1999, Mr. Swierkiewicz was notified by the EEOC of his right to file a civil action against
SOREMA.
10. This lawsuit has been timely filed within 90 days of
Mr. Swierkiewicz’s receipt of the EEOC’s right-to-sue notice.
41. Pursuant to §8-502(c) of the City Law, prior to filing this Amended
Complaint, plaintiff Swierkiewicz served a copy of the Amended Complaint on the City
of New York Commission on Human Rights and the City of New York Corporation
Counsel.
FACTUAL ALLEGATIONS
ee Ee
42. Mr. Swierkiewicz is a native of Hungary. He became a United
States citizen in 1970.
13. Mr. Swierkiewicz is 53 years old. His date of birth is July 25, 1946,
14. SOREMA was formed in 1989. It is a reinsurance company
principally owned and controlled by a French parent corporation. At all times relevant
hereto, SOREMA’s Chief Executive Officer has been Francois M. Chavel, a French
national.
145. From 1970 to 1986, Mr. Swierkiewicz was employed by INA which
after its merger in 1982 with Connecticut General, became CIGNA Insurance Company.
His last position at CIGNA was Vice President of Special Risk Facilities.
Page: 54 of 60
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USCA11 Case: 21-12592
a
16. From 1986 to 1989, Mr. Swierkiewicz was employed by SCOR
U.S., a reinsurance company, as Senior Vice President for Research and Special
Risks.
47. On April 17, 1989 Mr. Swierkiewicz began his employment with
SOREMA in the position of Senior Vice President and Chief Underwriting Officer
(‘CUO’).
18. Inaill respects, Mr. Swierkiewicz performed his job in a satisfactory
and exemplary manner.
49. Despite plaintiffs steliar performance, in February 1995 Mr. Chavel
demoted him from his CUO position to a marketing and services position and
transferred the bulk of his underwriting responsibilities to another French national,
Nicholas Papadopoulo, who was 32 years old at the time (and 16 years younger than
plaintiff).
20. Mr. Chavel demoted Mr. Swierkiewicz on account of his national
origin (Hungarian) and his age (he was 49 at the time).
21. Avyear later, in or about February 4996, Mr. Chavel formally
appointed Mr. Papadopoulo as SOREMA’s CUO.
22. Mr. Papadopoulo was far less experienced and less qualified to be
SOREMA’s CUO than was Mr. Swierkiewicz. Indeed, Mr. Papadopoulo had just one
year of underwriting experience prior to being appointed CUO by Mr. Chavel. By
contrast, plaintiff had more than 26 years of broad based experience in the insurance
and reinsurance industry.
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USCA11 Case: 21-12592
23. At the time Mr. Papadopoulo assumed plaintiffs duties as CuO,
Mr. Chavel stated that he wanted to “energize” the underwriting department -- clearly
implying that plaintiff was too old for the job.
24. In light of Mr. Papadopoulo’s inexperience, Mr. Chavel brought in
Daniel Peed from SOREMA's Houston, Texas office to support him in his CUO duties.
Mr. Peed, like Mr. Papadopoulo, was in his early 30s. Shortly after his transfer to
SOREMA's office in New York City, Mr. Chavel promoted Mr. Peed to the position of
Senior Vice President of Risk Property.
95. Prior to his transfer, Mr. Peed had been a Second Vice President
reporting to plaintiff.
26. Not !ong after plaintiff's demotion, SOREMA hired another French
national, Michel Gouze, as Vice President in charge of Marketing. Mr. Gouze, unlike
plaintiff, had very little prior experience in the insurance/reinsurance business.
27. Because of his inexperience, Mr, Gouze needed to rely on
Mr. Swierkiewicz to perform his marketing duties for SOREMA.
28. Mr. Gouze’s marketing duties at times overlapped with those of
plaintiff. Despite Mr. Swierkiewicz’s requests to better coordinate their duties,
Mr. Chavel refused to accommodate those requests or to have Mr. Gouze report to
plaintiff.
29. Mr. Swierkiewicz was isolated by Mr. Chavel following his
demotion, excluded from business decisions and meetings and denied the opportunity
to reach his true potential at SOREMA.
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USCA11 Case: 21-12592
30. Efforts by Mr. Swierkiewicz to meet with Mr. Chavel to resolve the
unsatisfactory working conditions to which he was subjected following his demotion
proved unsuccessful.
31. On April 14, 1997, following two years of ongoing discrimination on
account of his national origin and age, Mr. Swierkiewicz sent a memo lo Mr. Chavel
outlining his grievances and requesting a severance package to resolve his disputes
with SOREMA.
32. Mr. Chavel did not respond to Mr. Swierkiewicz’s memo.
33. In the morning, on Tuesday April 29, 1997, Mr. Chavel and Daniel
E. Schmidt, IV, SOREMA’s General Counsel, met with Mr. Swierkiewicz and gave him
two options: either resign his job (with no severance package) or be fired.
34. Mr. Swierkiewicz refused to resign his employment with SOREMA.
35. As aresult, he was fired by Mr. Chavel, effective that very day
(April 29, 1997).
36. SOREMA had no valid basis to fire Mr. Swierkiewicz.
37. Plaintiffs age and national origin were motivating factors in
SOREMA’s decision to terminate his employment.
38. Unlike plaintiff who was fired without cause and without any
severance pay or benefits, SOREMA has provided generous severance packages to a
number of former executives for whom it had cause to terminate their employment.
These include, but are not limited to, the following individuals: Jay Kubinak, Thilo
Herda, Douglas Zale, Nigel Harley and Marcus Corbally.
6
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39. As adirect and proximate cause of his being fired by SOREMA,
Mr. Swierkiewicz has suffered and will continue to suffer a substantial loss of earnings
to which he otherwise would have been entitled. This includes, but is not limited to, the
loss of his salary, bonus, automobile allowance and pension credits as well as the loss
of his medical and dental insurance, life insurance, short and tong term disability
insurance and the insurance he had for accidental death and dismemberment.
40. Asa further direct and proximate cause of his being fired by
SOREMA, Mr. Swierkiewicz has suffered damage to his reputation and harm to his
career. He has also experienced physical pain and suffering, mental anguish, and the
loss of enjoyment of life’s pleasures.
41. SOREMA acted willfully and in reckless disregard of Mr.
Swierkiewicz’s rights under Title VI! and the ADEA by discharging him from
employment on account of his age and national crigin.
STATEMENT OF CLAIMS
COUNT 1: VIOLATION OF TITLE Vil
42. Mr. Swierkiewicz repeats and incorporates by reference the
allegations of paragraphs 1 - 41 of the Amended Complaint as if they were set forth in
full.
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43. SOREMA terminated Mr. Swierkiewicz’s employment on account of
his national origin and thereby violated his right to equal employment opportunity as
protected by Title VII.
COUNT II: VIOLATION OF THE ADE
44. Mr. Swierkiewicz repeats and incorporates by reference the
allegations of paragraphs 1 - 43 of the Amended Complaint as if they were set forth in
full.
45. SOREMA terminated Mr. Swierkiewicz’s employment on account of
his age and thereby violated his right to equal employment opportunity as protected by
the ADEA.
COUNT II: VIOLATION OF THE HUMAN RIGHTS LAW
46. Mr. Swierkiewicz repeats and incorporates by reference the
allegations of paragraph 1 - 45 of the Amended Complaint as if they were set forth in
full.
47. Sorema terminated Mr. Swierkiewicz’s employment on account of
his national origin and/or age in violation of his right to equal employment opportunity
as protected by the Human Rights Law, §296 et. seq.
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COUNT IV: VIOLATION OF THE CITY LAW
48. Mr. Swierkiewicz repeats and incorporates by reference the
allegations of paragraphs 1 - 47 of the Amended Complaint as if they were set forth in
full.
49. Sorema terminated Mr. Swierkiewicz's employment on account of
his national origin and/or age in violation of his right to equal employment opportunity
as protected by.the City Law, §8-1 07 et seq.
PRAYER FOR RELIEF
WHEREFORE, Mr. Swierkiewicz respectfully requests the Court to enter
judgment in his favor and against SOREMA, and to accord him the following relief:
(a) Back pay with prejudgment interest and all the fringe benefits to
which he is entitled;
(b) Front pay and benefits to the extent reinstatement is not feasible;
(c) Compensatory damages for his non-economic injuries in an
amount authorized by Title VI and by the Human Rights Law and the City Law,
(d) Punitive damages to punish and deter SOREMA from future acts of
employment discrimination in an amount authorized by Title VII and the City Law;
(e) Liquidated damages in an amount equal to twice Mr. Swierkiewicz's
back pay losses as authorized by the ADEA;
(f) An award of reasonable counsel fees and costs to compensate
Mr. Swierkiewicz for having to prosecute this action against SOREMA, and
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(g} Such other legal and equitable relief or may be just and proper
under the circumstances.
JURY DEMAND
Mr. Swierkiewicz demands a trial by jury on all the issues in this action
that are triable by law.
Respectfully submitted,
\ yf : ‘ & U
ti kl eat fy
Harold |. Goodman, Esquire (HG 4895)
RAYNES, MCCARTY, BINDER, Ross & MUNDY
1845 Walnut Street, 20" Floor
Philadelphia, PA 19103
(215)568-6190
ANNE L. CLARK, ESQUIRE (AC 6456)
VLADECK, WALDMAN, ELIAS & ENGELHARD, P.C.
1501 Broadway, Suite 800
New York, NY 10036
(212}403-7332
Counsel for Plaintiff,
Akos Swierkiewicz