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Case 1:17-cv-01962-KMT Document 3 Filed 08/15/17 USDC Colorado Page 1 of 62

UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF COLORADO
Case No. 17-cv-1962

JOHN DOE,

Plaintiff,

-against-

UNIVERSITY OF DENVER, UNIVERSITY


OF DENVER BOARD OF TRUSTEES,
REBECCA CHOPP, individually and as
agent for UNIVERSITY OF DENVER,
KRISTIN OLSON, individually and as agent
for UNIVERSITY OF DENVER, JEAN
MCALLISTER, individually and as agent
for UNIVERSITY OF DENVER, SIRI SLATER,
individually and as agent for
UNIVERSITY OF DENVER, and ERIC
BUTLER, individually and as agent for
UNIVERSITY OF DENVER,

Defendants.
_______________________________________________________________________________
COMPLAINT AND JURY DEMAND
________________________________________________________________________________

Plaintiff John Doe1 (hereinafter referred to as Plaintiff or John Doe), by his attorneys

Nesenoff & Miltenberg, LLP and Michael Mirabella P.C., as and for his Complaint, respectfully

alleges as follows:

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Plaintiff herewith files a motion to restrict access to information contained within the Complaint.
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THE NATURE OF THIS ACTION

1. This case arises out of the actions taken and procedures employed by Defendants

University of Denver (Defendant University of Denver or University of Denver or the

University), University of Denver Board of Trustees (Defendant Board of Trustees),

Rebecca Chopp (Defendant Chopp), Kristin Olson (Defendant Olson), Jean McAllister

(Defendant McAllister), Siri Slater (Defendant Slater), and Eric Butler (Defendant Butler)

concerning allegations made against Plaintiff, a male freshman student at University of Denver

as a result of false allegations of nonconsensual sexual contact with fellow University of Denver

freshman student Jane Roe.

2. In addition to the damages sustained by John Doe, including his inability to

continue his education at University of Denver and receive his degree, John Doe has sustained

damages to his future education and career prospects as a result of the University finding John

Doe responsible for an offense he did not commit and his dismissal from the University.

Additionally, as a result of Defendants actions and inactions, John Doe has suffered physical,

psychological, emotional and reputational damages, economic injuries and the loss of

educational and career opportunities.

3. Throughout the investigative process, Defendants failed to abide by University of

Denvers own guidelines and regulations and acted in direct violation of federal and/or state law.

4. A non-exhaustive list of Defendants wrongful actions include the following: (i)

Defendants failed to provide John Doe proper notice of the charges; (ii) Defendants evidenced a

gender bias against John Doe as the male accused of sexual misconduct throughout the

investigative process; (iii) Defendants made assessments of credibility and evidentiary weight

with respect to each party and witness without any ascertainable rationale or logic; (iv)

Defendants failed to afford John Doe the requisite presumption of innocence required by a

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preponderance of the evidence standard; (v) Defendants failed to afford John Doe a hearing

before an impartial decision maker; (vi) Defendants deprived John Doe of the opportunity to

confront and question his accuser; (vii) Defendants failed to afford John Doe the opportunity to

question any witnesses against him; and (viii) Defendants failed to protect him from a threat of

violence and retaliation, all of which demonstrated substantial procedural errors in violation of

Title IX, the Fourteenth Amendment and other federal and/or state laws.

5. When Defendants subjected John Doe to disciplinary action, they did so in an

arbitrary and capricious way, deprived him of due process and discriminated against him because

of his gender. Defendants failure to adherence to the University of Denvers own guidelines and

regulations which were unfair and biased coupled with Defendants deviation from otherwise fair

portions of said procedures is likewise improper and discriminatory. Additionally, the University

of Denvers guidelines and regulations, which they did follow are inherently discriminatory and

insufficient to protect the rights of male students. The Decision reached was discriminatory;

given the evidence (or lack thereof), a discriminatory bias against males and the underlying

motive to protect University of Denvers reputation and financial wellbeing was required for a

conclusion of sexual misconduct to be reached.

6. John Doe therefore brings this action to obtain relief based on causes of action for

violations of Title IX of the Education Amendments of 1972, violation of 14th Amendment

Procedural Due Process, breach of contract and other state law causes of action.

THE PARTIES
7. Plaintiff is a natural person, citizen of the United States, and resident of the State

of Ohio. During the events described herein, Plaintiff was a student at the University of Denver

and resided on the Universitys campus in Denver, Colorado.

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8. Upon information and belief, Defendant Colorado Seminary, known publicly as

University of Denver is a private, coeducational university in the city of Denver, Colorado, with

an address of 2199 S. University Boulevard, Denver, Colorado 80208.

9. Upon information and belief, Defendant Board of Trustees is the governing body

of the University of Denver. It is composed of twenty-eight (28) voting members including

alumni, parents of students and the Chancellor of the University of Denver. According to its

website, its primary roles include selection and oversight of the Chancellor, management of the

endowment and investments of the University, oversight of financial and other controls, legal

and other compliance, and approval of strategic plans and annual budgets.

10. Upon information and belief, Defendant Chopp is an individual residing in the

State of Colorado and was the Chancellor of the University of Denver at all relevant times

herein.

11. Upon information and belief, Defendant Olson is an individual residing in the

State of Colorado and was Director of Student Conduct at the University of Denver at all

relevant times herein.

12. Upon information and belief, Defendant McAllister is an individual residing in

the State of Colorado and began her employment as Title IX Coordinator at the University of

Denver on June 1, 2015.

13. Upon information and belief, Defendant Slater is an individual residing in the

State of Colorado and was an investigator with the OEO at the University of Denver at all

relevant times herein.

14. Upon information and belief, Defendant Butler is an individual residing in the

State of Colorado and was an investigator with the OEO at the University of Denver at all

relevant times herein.

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15. John Doe and Defendants University of Denver, Board of Trustees, Chopp,

Olson, McAllister, Slater and Butler are sometimes hereinafter collectively referred to as the

Parties.

JURISDICTION AND VENUE

16. This Court has federal question, diversity and supplemental jurisdiction pursuant

to 28 U.S.C. 1331, 28 U.S.C. 1332 and under 28 U.S.C. 1367 because: (i) the federal law

claims arise under the constitution and statutes of the United States; (ii) John Doe and

Defendants are citizens of different states and the amount in controversy exceeds $75,000.00,

exclusive of costs and interest; and (iii) the state law claims are so closely related to the federal

law claims as to form the same case or controversy under Article III of the United States

Constitution.

17. This Court has personal jurisdiction over Defendant University of Denver (DU

or the University) on the grounds that it is conducting business within the State of Colorado.

18. This Court has personal jurisdiction over Defendant Board of Trustees on the

grounds that it is conducting business within the State of Colorado and is the governing body of

the University of Denver.

19. This Court has personal jurisdiction over Defendant Chopp on the grounds that

she was acting as an agent of University of Denver at all relevant times herein.

20. This Court has personal jurisdiction over Defendant Olson on the grounds that she

was acting as an agent of University of Denver at all relevant times herein.

21. This Court has personal jurisdiction over Defendant McAllister on the grounds

that she was acting as an agent of University of Denver at all relevant times herein.

22. This Court has personal jurisdiction over Defendant Slater on the grounds that she

was acting as an agent of University of Denver at all relevant times herein.

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23. This Court has personal jurisdiction over Defendant Butler on the grounds that he

was acting as an agent of University of Denver at all relevant times herein.

24. Venue for this action properly lies in this district pursuant to 28 U.S.C. 1391

because the University of Denver is considered to reside in this judicial district and a substantial

part of the events or omissions giving rise to the claim occurred in this judicial district.

FACTUAL ALLEGATIONS COMMON TO ALL CLAIMS


I. AGREEMENTS, REPRESENTATIONS, COVENANTS & WARRANTIES
BETWEEN PLAINTIFF AND UNIVERSITY OF DENVER

25. Plaintiff John Doe was accepted to the University of Denver as a member of the

class of 2019. Upon his acceptance, the University of Denver provided John Doe with copies of

its school policies, including the University of Denvers Office of Equal Opportunity (OEO)

Procedures (the Procedures), the 2015-2016 and 2016-2017 editions of which are available on

the Universitys website. See, http://www.du.edu/equalopportunity/complaints/index.html (Last

accessed, July 31, 2017).

26. With respect to cases involving allegations of sexual discrimination, sexual

harassment, and sexual assault, University of Denvers Procedures state in relevant part:

These Procedures address all forms of sexual discrimination, including sexual


harassment and sexual violence. Procedures, Article (III)(A). They also address
stalking and relationship violencePursuant to Title IX of the Education
Amendments of 1972, the University of Denver does not discriminate on the basis
of sex in its educational, extracurricular, athletic, or other programs or in the
context of employment.

These Procedures prohibit sexual harassment, sexual violence, stalking, and


relationship violence against University community members of any gender,
gender identity, gender expression or sexual orientation. Office of Equal
Opportunity Procedures 2015-2016, p. 4.

27. University of Denvers Office of Equal Opportunity Procedures, in conjunction

with the University of Denver Honor Code and Student Conduct Policies and Procedures set

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forth the procedures by which University of Denver students who have been accused of violating

one or more of the enumerated policies are investigated, heard, and, possibly, disciplined.

28. University of Denvers Procedures define Non-Consensual Sexual Contact as:

Any intentional sexual touching, however slight, with any object,


by any individual upon any individual that is without consent; by
force, or coercion, or threat; or where that individual is
incapacitated.

29. The Procedures define Consent in relevant part as follows:

Individuals who choose to engage in sexual activity of any type


with another individual must first obtain clear consent. Consent
must be clear, knowing, and voluntary. Consent is active, not
passive. Consent can be given by words or actions or as long as
those words or actions create mutually understandable clear
permission regarding willingness to engage in (and the conditions
of) sexual activity.

30. A complaint that alleges a violation of the Universitys policies related to

nondiscrimination is addressed through the Universitys OEO. Upon receipt of a report alleging

sexual misconduct, the Title IX Coordinator or OEO will conduct an initial assessment of: the

incident or behavior at issue; any risk of harm to the parties, any other individuals or the broader

campus community; the complainants desired course of action; and the necessity for any interim

measures to protect the safety of the complainant, any other individuals or the broader

community. The Procedures note that University of Denver will seek action consistent with the

Complainants request. (emphasis added).

31. As part of the initial assessment, the Procedures provide the following

accommodations to the complainant:

Notify the complainant of the right to make a report (or decline to


make a report) with law enforcement if the conduct is criminal in
nature, and if requested, assist them with notifying law
enforcement;

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Notify complainant of the availability of medical treatment to


address physical or mental health concerns and preserve evidence;

Provide complainant with information about on and off campus


resources and the range of interim measures;

Discuss complainants expressed preference for manner of


resolution;

Explain the Universitys policy prohibiting retaliation; and

Explain the role of a support person or advisor.

32. Where the initial assessment concludes that sanctions may be appropriate, the

University will initiate an investigation. The University will designate an investigator who has

specific training and experience investigating allegations of harassment, discrimination and

sexual harassment. The investigator may be an employee of the University or an external

investigator. The investigator must be impartial and free of any conflict of interest.

33. The Procedures specify that the investigation is designed to provide a fair and

reliable gathering of the facts. It must be thorough, impartial and fair and ensure that all

individuals will be treated with appropriate sensitivity and respect.

34. Both parties may have an advisor or support person present at any meeting related

to the investigation.

35. The parties may provide any relevant information to the investigator, including

the names of witnesses and documents to review, at any time before the investigation is closed.

36. The complainant and respondent will have an equal opportunity to be heard, to

submit information, and to identify witnesses who may have relevant information. Witnesses

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must have observed the acts in question or have information relevant to the incident, and cannot

be participating solely to speak about an individuals character.

37. While the Procedures note that the complainants prior sexual history is not

relevant and will not be admitted except in limited circumstances, the investigator may consider

prior allegations of, or findings of responsibility for, similar conduct by the respondent.

38. The goal of the investigation is to gather all relevant facts, make factual

conclusions, determine whether there is a policy violation and if warranted, refer the matter for

appropriate sanctions.

39. The University will seek to conclude the investigation within forty-five (45) days

of receiving the report; this time frame may be extended for good cause with written notice to the

parties of the delay and the reason for the delay.

40. At the conclusion of the investigation, the investigator will prepare a written

report that summarizes the information gathered. The investigator is given significant discretion

regarding what information to include in the investigation report: he or she may redact

information deemed irrelevant, more prejudicial than probative, or immaterial; the investigator

may redact statements of personal opinion rather than direct observations or reasonable

inferences; and the investigator may redact statements as to general reputation for any character

trait, including honesty.

41. Before the investigation report is finalized, the complainant and respondent will

each be given an opportunity to review the preliminary report and offer oral or written comment.

The parties may submit any additional comments or evidence to the investigator within five (5)

business days. After the five-day period has lapsed, the investigator will make a determination by

a preponderance of the evidence standard whether sufficient information exists to support a

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finding of responsibility for violation of the Procedures. The final written report must include the

determination of responsibility and the rationale for the determination.

42. University of Denver, in this Investigation allegedly employed the "dual

investigator model," which allows two individuals to conduct the entire investigation, make a

determination of responsibility and issue a corresponding finding. As the Universitys

Procedures do not provide for a hearing on the charges, the respondent is denied the opportunity

to confront his accuser, question any witnesses against him and present his defense before an

impartial decision maker.

43. Once the investigation report has been finalized, a member of the OEO will meet

with complainant and respondent to disclose the decision. Thereafter, the OEO will issue a letter

of determination.

44. If it is concluded that a violation occurred, the investigative findings will be

referred to an Outcome Council.

45. The Director of Student Conduct and/or the Director of Graduate Student Services

will convene an Outcome Council within five (5) business days. The Outcome Council is

composed of three (3) members of the university community who have sufficient training or

experience to serve in this capacity.

46. The Outcome Council must be composed of neutral and impartial decision-

makers who approach each case without preconceived ideas of responsibility. Although required

to review all case materials, the Outcome Council only serves as a rubber stamp; it does not have

the authority to challenge or overturn the findings of the investigator. Thus, the Outcome

Councils sole task is to impose sanctions that correspond to the investigators determination.

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47. The respondent and complainant must be notified of the individuals who will be

serving on the Outcome Council and have the right to object to the participation of any member

based on demonstrable bias within two (2) business days.

48. Although the Outcome Council is granted discretion in determining what

sanctions to impose, the following criteria should be considered: the nature and severity of the

act; the number of complainants; prior student conduct history of the respondent; the councils

assessment of the effect the policy violation has on the complainant, community and university;

and community safety. Denvers Procedures do not address how the Outcome Council must

weigh each of these factors to ensure consistency across analogous cases.

49. While the Outcome Council is composed of only three members, a unanimous

vote is not required for a determination of sanctions.

50. Notably, the Procedures explicitly state that violations of the non-consensual

sexual contact provision of these Procedures typically result in a dismissal. (emphasis added).

Thus, the investigators are cognizant of the probable outcome when their investigation report

concludes a respondent has violated the non-consensual sexual contact provision.

51. Once the Outcome Council has rendered a finding, a member of the Outcome

Council will offer both parties the opportunity to meet individually and share the decision made,

within two (2) business days.

52. At this meeting, written notification of the decision will be provided and appeal

options will be discussed.

53. In the event the Outcome Council assesses a suspension or expulsion, the

imposition of sanctions takes immediate effect, regardless of a pending appeal process.

54. Appeals will only be considered in the following circumstances:

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The existence of procedural error(s) so substantial that it would


likely alter the investigative findings and ultimate outcome;

Presentation of new and significant evidence which was not


reasonably available at the time of the initial investigation and
would likely alter the investigative findings and ultimate outcome;
and/or

The outcomes imposed are substantially disproportionate to the


violation.

55. An appeal will only be considered if submitted to the appellate officer identified

by the Outcome Council within five (5) calendar days.

56. If an appeal is filed, the other party will be notified that an appeal has been

received and will be given an opportunity to submit a written response.

57. The appellate officer will communicate the result of the appeal to both parties

within five (5) business days from the date of the submission of all appeal documents. Appeal

decisions are final.

58. The Procedures provide that University of Denver will make every effort to

resolve all reports within sixty (60) days. This time frame may be extended for good cause as

necessary; for instance, to ensure the integrity and completeness of the investigation. Any

extension of the timeframe, and the reasons for such extension, must be shared with the parties in

writing.

59. The Procedures further state that complainants are encouraged to report

allegations of sexual misconduct as soon as possible in order to maximize the Universitys

ability to respond promptly and effectively. Although there is no time restriction on when a

complaint can be filed, complainants are encouraged to make a report within 180 days of the

last incident.

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60. Finally, complainants and respondents are granted the following non-exhaustive

rights throughout the investigation process:

To be treated with dignity and respect;

To a prompt and thorough investigation;

To object to the participation of the assigned investigator, a


member of the Outcome Council or appellate authority based on
demonstrable bias;

The right to request reasonable assistance and support;

The right to privacy;

The right to be free from intimidation and retaliation;

The right to written notification of a pending investigation;

The right to share information in support of his/her perspective;

The right to provide the names of other individuals who have


information directly relevant to the incident; and

The right to have a support person of his/her choice present


throughout the process.

II. JOHN DOE'S INTERACTIONS WITH JANE ROE BEFORE MARCH 5, 2016

61. John Doe first had contact with Jane Roe in the Fall of 2015 when Jane was

standing in the doorway of his room speaking with John's roommate. John entered his room and

said hello to Jane. John next saw Jane in January of 2016 at a house party, and the two began to

speak. After the party, the two walked back to the dorms together with John's arm around Janes

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waist. Jane Roe went back to John's room and the two of them got into bed together. They began

to kiss and both touched each other under their clothing from the waist up. While touching each

other in this intimate manner Jane informed John that she had not had sex before. Jane also made

clear that she did not want to have sex with John that evening. John respected Jane's decision.

The night continued with Jane wanting to spend the night with John. John offered her a pair of

his pajamas and the two spent the remainder of the night in John's bed.

62. The following morning John Doe and Jane Roe went to breakfast together at the

dining hall and ate with Jane's friend. They continued to see each other and Jane Roe confided to

John that he was the first person with whom she wanted to have sex.

63. John and Jane continued to see each other and on the evening of February 2, 2016

the two went to a Colorado Avalanche game together. Following the game, they returned to

campus and the night ended without any romance. Throughout February they spoke less

frequently and did not see each other regularly for the remainder of the month.

III. JOHN DOE AND JANE ROE'S INTERACTIONS ON MARCH 5, 2016

64. On March 4, 2016 John Doe was in his friend's dorm room playing video games.

John consumed approximately eight (8) vodka drinks during the few hours he was in his friends

room. John was intoxicated but was able to appreciate his surrounding and environment. Jane

Roe and her friend, Witness F (JR)2 knocked on the door and then entered the room. Neither

John nor his friends knew how Jane had learned he was in that particular dorm room. Jane

appeared fully coherent and functional when she entered the room. John had no knowledge of

any alcohol Jane may have consumed that evening as he was not with her. Jane requested that

2
Witnesses are referred to by the letter assigned to them by Butler and Slater in the Investigation report. The
witness' initials, as remembered by John when he reviewed an unredacted copy of the report, are also included
parenthetically. It should be noted that the University's policy of redacting all of the names in the file before
providing the records to John has made it impossible to fully understand and analyze the Investigation report.

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John leave with her and John declined. Shortly thereafter, Jane Roe left the room alone. After

Jane left, John Doe's friend, Witness E (AC) opened the door and asked John to step outside for a

moment. John was unaware that Witness E was acting on behalf of Jane Roe. Unbeknownst to

John, Jane had recruited John's friend as a ruse to lure John out of the room.

65. When John left the room to see what Witness E wanted, he observed Jane Roe

standing in the hallway. Jane grabbed John's hand and began to lead him in the direction of her

room. While doing so, she asked John to accompany her to her room and John agreed.

66. John and Jane entered Jane's room which was empty as her roommate was away.

The room had two single beds and some of the lights in the room were on. The two spoke briefly

about their relationship. Both agreed it was worth pursuing. The two began to kiss and, while

doing so, Jane Roe began to take off John's belt. As Jane had some difficulty removing John's

belt he took it off himself as Jane removed her own shirt.

67. Upon advising Jane, who did not objection, John briefly left the room to retrieved

condoms. When John reentered the room, he put the condoms on a desk directly next to the head

of Janes bed. The lights in the room were still on and he did this in front of Jane. The two began

to kiss while sitting on the floor of the room and John removed Janes bra. Jane Roe responded

by assisting John to remove his shirt. The two began to kiss each other and touch each other

about their bodies. As their physical interactions escalated John began to feel ill. He stood up and

walked over to the trash can in the room and vomited inside of the can. John, embarrassed by

this, began to apologize repeatedly to Jane Roe. He also promised he would throw out the

garbage the next morning.

68. John and Jane then moved to Janes bed. John began to feel better and the two

began to kiss again. At this point John removed his boxers and put on a condom. John, however,

was unable to sustain an erection and the condom came off of John's penis. The two continued to

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kiss and the two continued to touch each others bodies This intimate contact resulted in John

obtaining a further erection. At this point, John put on another condom. However, John quickly

lost his erection and he never inserted his penis into Janes vagina. John and Jane discussed the

fact that John drank too much that evening and he did not think he would be capable of having

sex with her. John apologized, put his boxers back on, and the two fell asleep together in her bed.

69. John awoke the next morning, March 5, 2016 when Jane rolled over on the bed

and into his body. Jane, who was still naked, proceeded to get on top of John. John got out of bed

and took off his boxers. He retrieved a condom, unwrapped it and as Jane was watching fm the

bed, he placed the condom on his erect penis. After putting the condom on John rejoined Jane on

the bed.

70. John then laid down on his back and Jane got on top of John's body. Jane began to

move slowly up and down until John's penis began to touch Jane's vaginal area. After less than a

minute had passed, and without John ever fully penetrating Jane's vagina, Jane got off the bed

and grabbed her robe. She indicated she was going to the bathroom, leaving John naked on the

bed and still wearing the condom.

71. After a few minutes Jane had not returned from the bathroom so John removed

the condom, put on his boxers, and waited in bed for Jane to return. After approximately five

more minutes, Jane returned wearing a robe. John began to dress and told Jane that he was

leaving. Jane began to repeatedly ask John to remain in the room and speak with her. John told

her that he wanted to leave. He took the garbage bag that he had vomited into out of the can and

left the room.

72. The next time the two (2) spoke was when Jane called John on the evening of

March 6, 2016. Their conversation was mutually respectful, and during the conversation Jane

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Roe expressly told him that she had decided to have sex with John that morning at one-point

stating, you didn't take anything from me. I want you to know that I gave it to you.

73. Late in the evening of March 7 and the early morning of March 8, Jane Roe sent

John a lengthy text message. Jane's text message focused on two concerns: that John did not

want to finish their conversation that was started after Jane abruptly left the room and entered the

bathroom, and her uncertainty about what happened on Friday night after she led John to her

room.

74. Jane also texted about what had occurred during the morning before John left

Janes room. Jane made clear that she viewed the incident through an entirely different light than

she had during their March 6, 2016 telephone conversation when she did not reference any

nonconsensual conduct and had, in fact, spoken about how it was her decision to attempt to have

sex with him that morning. Jane now stated that she had come to realize that [John] did hurt

(her) and that he stripped (her) of something that wasn't (his) to take. In light of the ambiguity

of this assertion, and how it appeared to contradict her earlier statements when they had spoken,

John immediately responded that he never coerced her and referenced Janes own words from

their first conversation where she stated she willingly gave it to him and that it was her

choice.

75. Jane suggested that this topic should not be discussed via text and immediately

sought to clarify her texts related to how John hurt her. She first wrote, our words shouldnt

be interpreted with our own emotions. We should be acknowledging the actual place that we are

coming from. She then stated, because both of us are mad, we shouldnt be doing this in text

either because reading my texts I don't mean for them to sound the way I know you are probably

taking it. Jane Roe then suggested talking by telephone.

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76. Jane Roe also stated that she had the right to change her mind about her view of

the consensual nature of their intimate encounter. Their exchange, however, also made clear that

they had consensual sex but Jane now regretted sleeping with John. She claimed not to have a

memory of these interactions and texts stating, I was asking you to tell me what happened

because there were marks. Apparently, Jane was referring to alleged scratches and bruises,

which John had not noticed or seen at any time on the evening of March 4th and the morning of

March 5th.

77. At no time did Jane ever accuse John of any misconduct or non-consented sexual

contact during the evening of March 4th. During the conversation John responded, Also, I

know what youre insinuating about Friday. Dont. You invited me to your room, and started

taking your clothes off. We did NOT have sex because I was too drunk to keep it up. So we

didn't do anything until the next day, except make out. (sic?) Jane responded: You assumed

where I was coming from and look at where we are. This is toxic. You assume the worst and run

with it. Bye. Significantly, by the end of the text exchange Jane made clear that she did not

mean for (the texts) to sound the way I know you are probably taking it and that John should

not have assumed the worst based on her questions of him.

78. On March 8, 2016 Jane Roe met with a staff member from the Center for

Advocacy, Prevention, and Empowerment (CAPE).3 Jane informed this staff member that texting

John was such a mistake. The staff member told Jane that she should get a rape kit done and

that Jane likely had a valid Title IX case and a criminal case. Jane Roe stated that, upon

hearing this information her chest started to cave in, and (she) realized that this was a huge

deal.

3
In its literature, the University describes CAPE as supporting survivor healing by providing advocacy and support
for victims of sexual violence, stalking, sexual harassment, and relationship violence.

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79. Jane Roe went to the Denver Health Medical Center that same day.

80. On Thursday March 10, 2016, John was in his room studying for a final exam

that was scheduled for the following day. A woman who announced herself as Jane Roe's mother

entered the room and asked Johns roommate, his roommates girlfriend and another woman to

leave the room. After isolating John in his dorm room, Janes mother stated that Jane wanted to

speak to John. Following this instruction, Janes mother left the room.

81. Jane Roe, upon entering the room, informed John that she had filed an anonymous

report about the events that morning. Jane stated that she was not making a decision about

whether or not she was sexually assaulted, but rather she was letting people around her tell her

she was. John, bewildered by this assertion, confronted Jane and specifically asked her if she

thought John had sexually assaulted her. Once again, Jane stated that she was deferring to other

people's judgment on that point and then threatened John stating that she had a gun with one

bullet and that she had perfect aim. John, was distraught over this threat and immediately

sought guidance from his Resident Advisor (RA) and informed his RA of what Jane had said.

82. On March 23, 2016 Jane Roe met with Natalie Alvarado (Ms. Alvarado), the

Resident Director of Johnson-McFarlane Hall. Jane informed Ms. Alvarado that Jane had

previously spoken to John regarding how she had viewed their interactions and told him that she

was not going to make a report. However, Jane then informed Ms. Alvarado that she had heard

John may have spoken to other people, and particularly his RA, about the fact that they had

consensual sex and not that he had assaulted Jane. Upon learning this information, Jane told Ms.

Alvarado that she was going to file a Title IX report.

83. On March 25, 2016 Jane Roe, met with Defendant McAllister. Nonetheless, Jane

Roe was still undecided about moving forward with an investigation. Defendant McAllister

filled out an Equal Opportunity Intake Form and planned to meet with her again the next week.

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84. On April 11, 2016 Defendant McAllister formally notified Defendants Butler and

Slater that Jane Roe had decided to move forward with an investigation related to the March 6,

2016 incident.

IV. THE INVESTIGATION

85. On April 22, 2016 Defendants Butler and Slater conducted an interview with Jane

Roe, during which she alleged that John Doe digitally penetrating her when she was asleep and

then forcibly putting his penis in her vagina.

86. On April 29, 2016 Defendant Butler, informed Jane Roe that Defendant

McAllister was going to notify John Doe of the Title IX investigation and confirmed with Jane

Roe that Jane had decided not to pursue criminal charges against John Doe.

87. On April 29, 2016, Defendant McAllister sent John Doe written notice that the

Title IX Office was in the process of reviewing a matter in which John was named. The letter

stated, "[s]pecifically, a DU student has reported concerns that you may have engaged in

violations of University Policies related to non-consensual sexual contact." The notice of

investigation did not identify the complainant, the date or location of the alleged incident, the

conduct complained of or the specific policy violations at issue.

88. Defendant McAllister's notice further asserted that "[t]he Office of Title IX acts as

a neutral and objective fact finder during the review process. To ensure this neutral and objective

review of the facts, DU employs two independent Equal Opportunity Investigators, to conduct

these reviews." The notice suggested times that John Doe could meet with Defendant McAllister

to "review our procedures for these reviews and your rights as a student." John met with

Defendant McAllister the following week.

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89. During his meeting with Defendant McAllister, John Doe inquired about DUs

retaliation policy and whether there would be repercussions as to Jane making a false report.

Defendant McAllister indicated there would not be.

90. Defendant Butler contacted John Doe and set up an interview with him. John Doe

was formally interviewed by Defendants Butler and Slater on May 11, 2016. As John did not

have access to his support person in Denver, he asked whether he could submit a written

statement instead. Defendants Butler and Slater threatened that John could not submit a written

statement unless he answered their questions. Further, Defendants Butler and Slater prohibited

John from calling his support person to participate in the interview by phone.

91. As John Doe was not provided a copy of Jane Roes complaint, he was forced to

participate in the investigation process and begin formulating his defense to the charges, without

being notified of the exact allegations against him, or the policies he allegedly violated. All John

knew was there was an allegation of non-consensual touching.

92. During this meeting John Doe, informed Defendants Butler and Slater that he

would be finishing his finals on May 26, 2016 and had a flight home on May 27, 2016. John also

told Defendants Slater and Butler that he would be out of the country between June 4 and June

15, 2016 and he would have limited internet access.

93. Upon information and belief, Defendants Butler and Slater interviewed 12

individuals, identified by Jane Roe between April 22, 2016 and June 1, 2016. Jane Roe was

interviewed twice.

94. The witnesses identified by John to the Defendant Investigators, were not

interviewed.

95. On May 23, 2016 Defendant Butler e-mailed John Doe and advised him that the

Preliminary Report would be available by next week at the latest. John responded to Defendant

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Butler and reminded Defendant Butler of his exam schedule and the fact he would be out of the

country between June 4, 2016 and June 15, 2016.

96. On June 3, 2016 having still not received the Preliminary Report from Defendant

Butler, John again emailed Defendant Butler, reminding him that he would be out of the country.

97. On June 7, 2016 Defendant Slater released the Preliminary Report, while John

was out of the country. In her e-mail to John, she stated she knew he was out of state and

warned him that he could not e-mail the report to anyone nor print the report.

98. On June 10, 2016 John was able to access his e-mail and, for the first time,

realized he had been sent the Preliminary Report. He e-mailed Butler and received an automatic

response e-mail back from Butler indicating that Butler was on a temporary leave of absence and

was not returning until August 1, 2016. John then e-mailed Defendant Slater to once again

inform her of the fact he was out of the country, did not have access to fully view the report, and

was unable to speak with his designated support person to ask questions. At this point Defendant

Slater relented and extended the time he had to review the report to June 22, 2016.

99. Notably, only upon receiving the Preliminary Report on June 7, 2016, after he had

already participated in an interview, did John learn for the first time that the allegations did not

involve any conduct related to his and Janes interactions upon first returning to the room, but

instead involved two specific charges of non-consensual contact: digital penetration and penile

penetration

100. Defendants Investigation Report, dated August 5, 2016, references handpicked

pages of Jane Roes Sexual Assault Nurses Examiners report (SANE) selected by Jane Roe and

provided by her to Defendants Slater and Butler.

101. Defendants Investigation Report, dated August 5, 2016 acknowledges that the

pages of the SANE report provided by Jane Roe to the Investigators were not the complete report

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and that the Defendants were aware that a complete SANE report would include summaries by

the SANE nurse, the attending physician, and the patients written statement regarding the

source of the injuries. (emphasis added) Defendants Slater and Butler acknowledge that these

pages were never provided to them.

102. Stunningly, Defendants Slater and Butler in the Investigation Report specifically

document that the missing pages may contain additional insight. (emphasis added).

103. On June 17, 2016 John e-mailed Defendants Butler and Slater noting that they had

not interviewed any of his five witnesses nor even included in the report his request that they be

interviewed. John also noted that the medical records provided by Jane were incomplete.

104. On June 22 Defendant Slater responded to John's June 17 e-mail and questioned

the relevance of his witnesses. She categorized TB and GM as witnesses who could merely

confirm that John was drinking at the time, which is not disputed. She also speculated the other

reason John wanted these witnesses interviewed because the two assumed John had sex with

Jane. Notably, Slater utterly ignored John's concerns related to Jane's medical records, evidence

she would later deem instrumental in her decision-making.

105. On July 6, 2016 Defendant Slater e-mailed John, stating she was "interested" in

interviewing his psychologist and requested a release so that she could speak with her. Slater

informed John that she would not interview TB or GM, writing "There is no dispute over the

claim that Jane entered your dorm and led you by the hand to leave." She reiterated that John did

not tell either of them about the sexual encounter. Slater also informed John she would not

interview his mother or family friend as "they have been privy to all the communications that

have taken place during this case.

106. During Defendants investigation Defendants Slater and Butler interviewed Jane

Roes numerous witnesses without requesting summaries or an offer of proof from Jane before

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interviewing this witness. None of Janes witnesses had firsthand knowledge of the allegations

and they only repeated what Jane herself told them. However, Defendants Slater and Butler

interviewed them but utterly refused to interview the witnesses identified by John.

107. On July 18, 2016 Defendant Slater made the Amended Preliminary Report

available for review. On July 24, 2016 John Doe, informed Defendant Slater that he had

reviewed the Amended Preliminary Report. As his requests for witness interviews and Janes

additional medical records had ended in Defendants Butler and Slaters failure to act, John did

not request any additions.

108. On August 15, having heard nothing from the University, John e-mailed

Defendant Slater inquiring about his case. That same day, Defendant Slater informed John that

the "final report is in the final stage of review."

109. On August 16, 2016, John Doe received the Decision of the OEO, via an e-mail

from Defendant Butler, finding him responsible for Non-Consensual Sexual Contact in violation

of the Universitys policies. The full investigative file and attachments were provided to him that

same day. The full investigative report noted that the active investigation concluded on July

14, 2016.

110. John Doe was advised that an Outcome Council would thereafter be convened in

order to determinate appropriate sanctions.

111. On Thursday, August 18, 2016, John Doe received written notification from

Defendant Olson that the Outcome Council would be convened to determine his sanction. John

Doe was advised that the Outcome Council members would include Kristin Olson, Molly

Hooker, and either Ryan Buller or Matthew Rutherford as the faculty representative. Defendant

Olson then advised him that the Council would be convened on Monday, August 24, 2016

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(Monday, was actually August 22) and the decision would be relayed to John Doe "via phone"

on Tuesday August 23, 2016.

112. The Outcome Council convened on August 22, 2016. Thereafter, on August 23,

2016, Defendant Olson called John and informed him that he had been dismissed from the school

and that he had been "trespassed from University property." Later that same day, Defendant

Olson issued a Dismissal Letter stating the Outcome Council determined (d)ue to the nature and

severity of (John's) actions, in the interest of restoring the pre-deprivation status of the

complainant, and in order to prevent future re-occurrence of [Johns] demonstrated behavior, the

Outcome Council finds it is necessary to remove [John] from the University community. As a

result, the Outcome Council assessed a sanction of permanent dismissal from the University and

imposed a trespass order, banning him from all University premises.

113. John Doe was instructed that he was permitted to file an appeal no later than

August 30, 2016. Not only do DUs Procedures afford an inadequate amount of time to prepare a

comprehensive appeal, but DU also violated its Procedures when the Dismissal Letter failed to

identify the appellate officer to whom an appeal was to be submitted within five (5) calendar

days.

114. Notwithstanding, on August 30, 2016, John Doe submitted an appeal based on the

following grounds: (i) the existence of a procedural error(s) so substantial that it greatly impacted

the findings, responsibility determination, and/or the ultimate outcomes, and (ii) (t)he outcomes

imposed are substantially disproportionate to the severity of the violation; specifically:

Defendants were biased against him as revealed by their failure to


communicate with him and update him on the progress of the
investigation in a meaningful way;

Defendants interviewed numerous witnesses of Jane Roe who, in


essence, simply repeated her version of events rather than having
witnessed anything relevant to the encounter;

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Defendant's failed to contact the witnesses John Doe submitted and


then did not conduct a meaningful interview with the one witness,
his psychologist, they finally interviewed despite their initial
resistance;

Failed to consider evidence tending to diminish Jane Roes


credibility; and

Overlooked the inconsistencies in Jane Roes statements.

115. Notwithstanding the blatant procedural errors exhibited throughout the

investigation process, Defendants denied John Does appeal and upheld the severe and unjust

penalty of expulsion.

V. THE UNIVERSITY FAILED TO ABIDE BY ITS OWN PROTOCOLS AND


PROCEDURES

A. The University Failed to Meet in Person with John at Critical Points in the
Process as Mandated by University Policy

116. Defendants utilized the dual investigative model during this Investigation.

Although Defendants Slater and Butler were assigned to this matter, as of June 10, 2016,

Defendant Butler was not working or involved in the investigation. His e-mail response indicated

he will be out on a temporary leave of absence and expected to return on August 1, 2016..4 At

no time was John advised of Defendant Butlers absence nor advised of any second investigator

assigned to the investigation.

117. As per the University Policy, "once the investigation report has been finalized, a

member of the Office of Equal Opportunity will meet with the Complainant and Respondent

4
When John e-mailed Butler on June 10 after realizing the school had released the Preliminary Report while he
was out of the country he received an automatic reply from Butler's e-mail account advising him that he "will be
out of the office on a temporary leave of absence, and expected to return to the office on August 1, 2016." This
likely caused the unacceptable substantial delays of this investigation and is contrary to the University's promise
of a timely process.

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individually during the pre-arranged time to share the decision made. The Complainant and

Respondent may opt to speak by telephone or to receive the report by electronic email instead.

This may or may not occur simultaneously based on the availability of the parties. The report

includes determinations regarding responsibility for violating the Discrimination and Harassment

Policy and/or the Honor Code."

118. After John confirmed he had reviewed the Preliminary Report on July 24, the

University stopped contacting him or providing any updates on the status of the investigation.

Finally, 22 days after his e-mail to Slater and Butler, on August 15, he again e-mailed Slater

asking about the outcome of the case. Slater replied cc'ing both Defendants McAllister and

Butler. Defendant Slater wrote, "The final report is in the final stage of review. We expect to

have a decision out to you in the next day or so." John was provided no information as to what, if

anything, happened between August 5 and August 16.

119. On August 16, DU again violated its policy by simply e-mailing John a

determination letter. As the Policy makes clear, John was entitled to have an actual meeting

about the decision with a member of the Office of Equal Opportunity. Butler sent John this e-

mail and cc'd Defendants McAllister, Slater, and Olson. The letter on its face revealed that Butler

was not following DU's policy to "meet with the Complainant and Respondent individually

during the pre-arranged time to share the decision made." Butler's letter concluded that if John

had any "additional questions about these findings or would like to schedule a meeting please do

not hesitate to contact" Slater, Butler, or McAllister. DU's policy makes clear that there should

have been a meeting during which the decision was shared. Butler's offer to meet after revealing

this information is contrary to University policy.

120. On August 18, 2016 Defendant Olson also e-mailed John a letter about the

upcoming process related to the Outcome Council. As with the notification of the investigative

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findings, according to DUs policies, the parties were entitled to have a face-to-face meeting

related to the finding of the Outcome Council: "(o)nce the Outcome Council has rendered a

finding, a member of the Outcome Council will offer the Respondent and Complainant(s) the

opportunity to meet individually to share the outcome decision made. This meeting will be

scheduled within two (2) business of the Outcome Council, and may occur simultaneously based

on the availability of the parties." The policy further describes that, "(a)t this meeting, Written

Notice to the Respondent and Complainant(s) will be provided and will include the Outcome

determinations."

121. Defendant Olson made no pretense of abiding by the school's policy, writing to

John on August 18, 2016, "(i)n order to share the decision made regarding outcomes, I am setting

up a time to speak with you after the Outcome Council for Tuesday, August 23, 2016 at 9:00 am,

which will occur via phone. I will plan on calling the number listed on your file unless you

provide an alternative prior to our scheduled time. If this appointment does not work for you,

please let me know as soon as possible so I can reschedule. Otherwise, please confirm that this

time works for you and that you will plan to participate."5

B. The University Failed to Provide any Specificity as to the Scope of the


Investigation at the Outset of the Process.

122. The Universitys Procedures list over a dozen bullet points detailing how the

University will make its initial assessment of the facts of a reported complaint. Notably absent is

any mention of how the respondent will be notified of the impending investigation once a course

of action has been decided.

5
This was not even the accurate number for John but rather his mother's. Further, Defendants Olson's e-
mail confusingly referred to Monday as being August 24.

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123. Further, the University's policy specifies that "...the investigator will make a

finding as to whether there is sufficient information to establish, by a preponderance of the

evidence, that a policy violation occurred. The final written report will include the determination

of responsibility and the rationale for the determination." Defendants Butler and Slater also

violated this aspect of the school's policy.

124. On April 29, 2016, John received a notification letter from Defendant McAllister

stating, "a DU student has reported concerns that you many have engaged in violations of

University Policies related to non-consensual sexual contact." The letter referenced Section V. B.

4. Non-Consensual Sexual Conduct. Within this section, a Respondent can be responsible for

having non-consensual sexual contact with a person by a number of means including intentional

sexual touching by force or where the individual is incapacitated. Further the University's

definition of incapacitation "as the inability, temporarily or permanently, to give consent because

an individual is mentally and/or physically helpless, asleep, unconscious, or unaware that sexual

activity is occurring."

125. The April 29th letter did not identify the complainant, the date or location of the

alleged incident, and provided no details as to what John Doe was actually accused of other than

that he engaged in "non-consensual sexual contact." Further, the charges were never detailed

with further precision during John's meeting with McAllister, or the subsequent meeting with

Defendants Slater or Butler.

126. Only upon receiving the Preliminary Report did John learn that Jane alleged that

he violated the University code in two specific ways: he digitally penetrated her while she was

sleeping and then forcibly inserted his penis in her vagina.

127. Despite these two very distinct acts that led to the alleged "violations" of DU

policy Defendants Butler and Slater wrote in the investigative report that they, "stress that the

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scope of the investigation is limited to Jane's allegation that John forcibly inserted his penis into

her vagina without her consent while they were alone in her residence hall bedroom on the

morning of March 5, 2016." Defendants Slater and Butler found John Doe responsible for this

single act and made no mention of the digital penetration. Although DU Policy mandates "the

final written report will include the determination of responsibility and the rationale for the

determination" the investigators did not offer any explanation as to why they were no longer

considering whether or not John had violated the policy as to the digital penetration.

C. The University Failed to Provide Reasonable Assistance and Support and


Violated Plaintiffs Right to Have a Support Person of His Choice Present
Throughout the Process

128. During John's interview with the investigators on May 13, 2016, he informed

them that he would be completing his finals on May 26 and had a flight home on May 27.

Further, he informed Defendant Butler that he would be out of the country from June 4 through

June 15.

129. John was alerted via e-mail on May 23, 2016 that Butler planned to "make the

preliminary report available by next week at the latest." This would have meant John was due to

receive the preliminary report anytime between May 30 and June 3. Slater was cc'd on this e-

mail.

130. John, while in the middle of finals, AGAIN reminded Defendant Butler that he

would be finishing his finals by May 26, would be flying home on May 27, and would be out of

the country between June 4 through June 15. John cautioned Defendant Butler that he would be

out of reach during this period of time and provided the name of his family friend as a contact

person should there be any updates as to the proceedings.

131. Defendant Butler replied via e-mail on May 26 and cc'd both Defendants Slater

and McAllister. Butler, Slater, and McAllister were utterly indifferent to the substantive issues

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presented by John in his e-mail. Butler simply informed him that the preliminary report would be

available via e-mail during a secure online connection and that the report could not be shared

with his advisor.

132. Defendants Butler, Slater, and McAllister all ignored the critical issues presented

by Johns concerns. If he received the preliminary report between June 4 and June 15 he 1)

would potentially have been unable to access it; 2) if he were to be able to access the preliminary

report he would have to review this important document while overseas; and 3) DU's restrictions

on sharing this document effectively eviscerated his right to have an advisor at this critical

juncture of the proceedings.

133. Stunningly, Butler wrote, "(i)f you believe that you need an extension of time to

submit additional information once the report is available, you may request that extension from

Jean McAllister. Ms. McAllister is copied to this message." This e-mail is utterly unresponsive to

the actual problems posed by John: should he receive the e-mail between June 4 and June 15 he

may not even be able to access it to request an extension.

134. On June 3, 2016, the outside date by which Butler had stated John would receive

the Preliminary Report in his May 23 e-mail, John still had not received the report. John again e-

mailed Butler. Butler never responded to this e-mail.

135. DU released the report on June 7. Defendant Slater's e-mail informing Plaintiff

that the preliminary report was available for review underscored that John had "five business

days to submit any further comments or relevant information." Defendant Slater noted this

despite the fact that it was clear that both the release of the Preliminary Report and the five-day

period of review fell squarely in the time period that John related he would be out of the country

during his May 11 interview with Defendants Butler and Slater.

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136. Further, Slater conceded, that "we understand you are currently out of state"6 but

nonetheless reiterated that the "report contains confidential information regarding employees and

students, and may not be e-mailed or printed for that reason." This was in violation of DU's

policy providing for a support person throughout the process.

137. The school policy states that respondents have "the right to have a Support Person

of his or her choice present throughout the process." (page 43). It further states that (t)he

Complainant and Respondent have the right to be assisted by a Support Person of their choice.

The Support Person is someone who can provide emotional, logistical, or other kinds of

assistance. The Support Person may be present at proceedings to assist parties by taking notes,

organizing documentation, or providing emotional support and reassurance. (page 44).

138. Slater unilaterally eliminated John's right to a support person and advisor. The

investigative packet itself was 61 pages. With John in another country, and unable to provide

access to the report to his advisor, Slater had, removed his support structure at this critical

juncture. John warned DU of this exact situation during the initial meeting on May 11. It is

impossible to be advised when one of your support people are 3,500 miles away, across multiple

time zones, and are forbidden from actually reviewing the actual report with John.

139. On June 10, 2016, John discovered the school had, in fact, sent him the 61-page

preliminary report while he was out of the country, despite his June 3 e-mail asking for an

extension before he left should the report be issued while he was away. His second e-mail, sent

upon receiving the report, outlined all his past warnings on this point.

6
Of course, John was not simply out of state but on the other side of the Atlantic with a six-hour time differential
and no computer.

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VI. FAILURE TO CONDUCT A THOROUGH AND IMPARTIAL


INVESTIGATION

A. Defendants Butler and Slater evidenced a gender bias against Plaintiff when
they relied on select portions of Jane Roes medical records.

140. DU promises students that allegations of sexual violence will be handled by an

investigator, defined as (a)n objective, neutral fact-finder with relevant training and

experience. (page 6). The policy further guarantees that (t)he investigation is designed to

provide a fair and reliable gathering of the facts. The investigation will be thorough,

impartial and fair, and all individuals will be treated with appropriate sensitivity and respect.

(emphasis added). The investigators' handling of the medical records violated the schools

guarantee in a number of respects.

i. The investigators should have obtained Jane's complete medical


records

141. Defendants Butler and Slater ceded their roles as objective, neutral fact-finders by

allowing Jane Roe to provide only select portions of her medical records. Despite DU's promise

that their investigators have the "relevant training and experience," Defendants Butler and Slater

lacked sufficient medical expertise to analyze the records. Nonetheless, they proceeded to

interpret portions of the medical records without any input from medical personnel while at the

same time utterly disregarding critical sections in the limited records that were provided.

Defendants Butler and Slater's willingness to disregard the probative value of Jane's decision to

withhold important sections of the records reveals the bias they had against John Doe and their

utter lack of impartiality.

142. Jane Roe provided a mere six pages of her medical records to the investigators. A

thorough, impartial, and fair investigator would have requested that Jane Roe sign a Health

Insurance Portability and Accountability Act (HIPPA) waiver that would allow them to

independently retrieve and review all of her medical records.

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143. Defendants Slater and Butler demanded a HIPPA authorization from the male,

John Doe, but never requested it from the female complainant Jane Roe, to obtain her full and

complete SANE report.

144. Defendants Butler and Slater abdicated their roles as independent investigators

and allowed Jane Roe, a party in the proceeding, to retrieve, screen, and selectively surrender

pages that, in her estimation, advanced her case. Further exacerbating this decision was the

investigator's conclusion that these records were instrumental in shaping their decision to find

John responsible. Specifically, they wrote that they found the "concrete information in the

sections" that were provided to have "value." Page 42. At the same time, they specifically noted

that the pages purposefully withheld by Jane may contain additional insight. (emphasis

added).

ii. Defendants Butler and Slater conceded they lacked sufficient medical
expertise to analyze the records yet did so anyway
145. Amazing, Defendants Slater and Butler freely admitted they were not qualified to

investigate this matter. In their report, they write that while Jane had not turned over photographs

that likely existed, these are not typically requested by or disclosed to the Investigators, as they

lack the medical expertise to visually assess the injuries and should be not unduly influenced by

their own unqualified medical opinions. It is bewildering that an investigator would not

typically request photographs of injuries allegedly sustained during the course of an alleged

assault. (Emphasis added).

146. Their utter failure to question, comment on, or explore Jane Roe's motivation

when providing a fraction of her records reveals the investigators partiality and bias. Incredibly,

the investigators do not comment at all on the significance that Jane Roe, herself, decided that

she did not want to share with the investigators the narrative of events that led to her hospital

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visit. A neutral, objective fact finder would not only reject this piecemeal surrender of

"evidence" but then question Jane Roe as to why she has not turned over these materials.

147. The investigators conceded they were fully aware of Jane's selective disclosure

but concluded that, despite the fact they were missing significant amounts of additional records,

the "concrete information" provided outweighs "any speculation regarding what might be found

in those documents." Any neutral fact-finder would not have found value in this concrete

evidence but should have either disregarded it without securing a complete set via a HIPPA

waiver or drawn an adverse inference in favor of the respondent in light of the fact that the

complainant was selectively withholding information.

B. Defendants Butler and Slater misrepresented Witness Gs narrative and


assigned it unwarranted weight.

148. Defendant Butler and Slater's substantial reliance on Witness G's statement

demonstrated a lack of reliability and impartiality in the investigation. In Butler and Slater's

"Findings and Conclusions" section they highlighted the importance of Witness G in their

determination that John was responsible for a policy violation. The investigators contrasted

Witness G's statement with the other witnesses, calling the other witness' narratives, "not nearly

compelling to the investigators as the single account of Witness G." The investigators opined on

the significance of Witness G, underscoring that he had no prior relationship with Jane at the

time of her disclosure, Jane could not identify Witness G to the investigators, and "(b)y every

measure the investigators find him to be truly objective and unbiased."

149. This "compelling" witness informed Butler and Slater that his memory was "a

little bit hazy because it's been so long." While, this fact alone would call into question how

Witness G's statement could reasonably be considered "compelling" his account of Jane's

description of the incident stands in stark contrast with what she told the investigators.

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150. Nonetheless, the investigators credited him as providing compelling corroborative

evidence of Jane's account and afforded unwarranted weight to his statement.

C. The Investigative Report Contained a Number of Misstatements that


Undermined Defendant Butler and Slaters rationale for finding John Doe
responsible for a policy violation.

151. The University policy states, "At the conclusion of the investigation, the

investigator will prepare a written report that summarizes the information gathered and

synthesizes the areas of agreement and disagreement between the parties and any supporting

information or accounts." Butler and Slater misrepresented critical facts and excluded other facts

revealing that their investigation was biased.

152. The report noted the "large volume of information" from Janes friends contained

"repeated reiterations of her account by her close friends." Yet, these witnesses' statements were

completely misrepresented by Defendants Butler and Slater.

153. Significant discrepancies between what Jane told these witnesses and what Jane

told the investigators were either falsely labelled as "issues in agreement" or ignored completely.

In fact, one of Jane's witness's assertions as to what Jane said was largely "in agreement" with

what John recounted.

154. The investigators had the discretion to decide the relevance of all proffered

evidence and determined that certain types of evidence would be included or excluded in the

investigation report. The confirmation bias in the process made it possible for the investigators to

influence and even predetermine the outcome which resulted in a biased and flawed investigation

report.

D. Jane Roe was re-interviewed but was not questioned about numerous facts
that undercut her narrative.

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155. DU's policy states that, "In most cases, investigators will have follow-up

questions for the complainant and respondent after their respective interviews." (page 33). In

fact, in outlining their process DU notes that the Respondent will be notified "once the

complainant's initial interview is complete." (page 33, emphasis added).

156. Here, the investigators re-interviewed Jane on May 17. Inexplicably, despite

receiving numerous facts that contradicted her narrative, they did not appear to ask any probing

"follow-up questions" about significant inconsistencies between Jane's multiple versions of

events. The investigators improperly relied only upon the complainants own repeated report and

testimony which did not prove that what she had stated was true nor did it confirm her

credibility.

157. By way of illustration, Defendants Butler and Slater ignored information

regarding Jane Roes motivation for filing the complaint. Specifically, Witness N told

investigators that she learned that Jane Roe was angry, not because she had been sexually

assaulted, but rather because she had learned that John Doe had sex with another female friend

that day.

158. Yet, this motive to manufacture a Title IX complaint was utterly disregarded by

investigators both in their questioning of witnesses and in their ultimate conclusions and, quite

clearly, speaks to the fact that these investigators were engaged in a goal oriented endeavor, i.e.

finding John Doe responsible, as opposed to neutral, fair investigation, to learn the truth.

E. The Investigators failed to ask any probing questions related to the


plausibility of Jane Roes account.

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159. DU's policy promises that (a)n objective, neutral fact-finder with relevant

training and experience will be assigned to respond to an allegation involving sexual violence.

160. Nonetheless Defendants Butler and Slater failed to act as objective and neutral

fact-finders when they accepted Janes statement at face value. Despite the fact they revisited her

description of the encounter there was absolutely no critical inquiry of her account. In light of the

way the summary was drafted it was impossible to discern what specific questions were asked

that prompted her responses.

161. The investigators never did any critical analysis of either of Janes narratives.

F. The Investigators failed to interview Plaintiffs witnesses.

162. DU's policy provides, "The parties may provide any relevant information to the

investigator, including the names of witnesses to contact and/or documents to review at any time

before the investigation is closed. The Complainant and Respondent will have an equal

opportunity to be heard, to submit information, and to identify witnesses who may have relevant

information. Witnesses must have observed the acts in question or have information relevant to

the incident and cannot be participating solely to speak about an individuals character.

Investigators will review and determine the weight and materiality of all submitted information

and including the necessity of interviewing potential witnesses."

163. At the conclusion of John's May 11 interview with Defendants Butler and Slater

they asked him whether or not there were any witnesses that he wanted interviewed. He

immediately told them TB and GM. These witnesses were relevant in that they could discuss

what Jane said while in the room with John, how they interacted, and both John and Jane's level

of intoxication. In light of Jane's claim that "I wanted to let him know I didn't want continue

talking to him anymore" these were particularly relevant areas of inquiry. Further, as per Witness

F (JR) she, Jane, John, TB and GM spent some time together in the room playing video games

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before Jane used Witness E (AC) to lure John out of the room. Neither John nor Jane were able

to provide any details as to this important portion of the night. TB and GM could have filled in

these facts.

164. Yet, Defendants Slater and Butler had no intention of pursuing these witnesses.

In her June 22 e-mail Slater states "I looked over your statement again to find where you

specified people you wanted us to interview......I did not find where you specifically requested

any individuals be interviewed. Instead I found various people you mentioned in your

statement."

165. As per their standard protocol, Defendants Butler and Slater asked John in their

initial meeting with him who he would want to be interviewed. Amazingly, Slater seems to have

no record of this. Further in their report (page 3) they claimed that John submitted these names

on June 17th."(i)n response to the Preliminary Report." These assertions are simply not true as

evidenced by John's e-mails reaffirming he had asked for these two witnesses to be interviewed

in his first meeting with Defendants Slater and Butler.

166. Equally troubling is how Butler and Slater justified their refusal. They referred to

these witnesses as "personal friends" and as "close friends" of John. Further, they suggested that

these witnesses were simply suggested by John because he made statements after the incident

consistent with his current, and steadfast, assertion the encounter was entirely consensual. Butler

and Slater simply ignored everything John had sent and written to them. He made it crystal clear,

during his initial interview, that these witnesses observed John and Jane interact before she led

him out of the room. He even made it clear that these witnesses were important because they

could describe the manner in which he and Jane interacted before the sexual encounter.

167. Regardless, Jane's comments to "personal friends" and "close friends" following

the encounter were all received without question despite the fact that the majority of them did not

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actually witness any events from that evening but rather spoke to Jane in the following days

about the incident. This is yet another example as to the bias of the investigators and the

disparate treatment John received.

168. The disingenuous nature of Slater and Butler's rationale is underscored by the fact

that Witness E, (AC), was the individual who was recruited by Jane to lure John out of the room

despite the fact John had originally declined her request to speak. The investigators asked AC

about this part of the evening but he had no memory of it. John, however, provided names of the

two people who could actually speak on this exact point. Nonetheless, they first claimed he never

asked them to interview either of them and then proceeded to deny John's request, while at the

same time inquiring of Jane's witnesses about this specific part of the evening.

G. Defendants Butler and Slater failed to address Jane Roes retaliation against
Plaintiff.

169. The Universitys policy states, "(a)s necessary, the University reserves the right to

initiate a complaint, to serve as a Complainant, and to initiate proceedings without a formal

complaint. A reporting party and Complainant need not be the same person." DU affords itself

the authority to proactively address misconduct by allowing itself to assume the role of

Complainant. The school's policy makes clear that a "reporting party and Complainant need not

be the same person."

170. The school also made clear that it would not tolerate either bullying or hazing.

The policy states that "(b)ullying includes any intentional electronic, written, verbal or physical

act, or a series of acts, directed at another individual, that is severe, persistent, or pervasive and

that has the intended effect of doing any of the following: (i) substantially interfering with a

student's education; (ii) creating a threating environment; or (iii) substantially disrupting the

orderly operation of the University." Further the school defines hazing as "any action or

situation, with or without the consent of the participants, which recklessly, intentionally, or

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unintentionally endangers the mental, physical, or academic health or safety of another

individual. This includes circumstances, which create a risk of injury; cause discomfort or

embarrassment; involve harassment, degradation, humiliation or ridicule..."

171. In his personal statement and subsequent interview John outlined an encounter

with Jane and her mother that was indisputably in violation of DU's code. John stated that shortly

after he had sex with Jane he was in his room studying for a final exam. Also in the room at the

time were John's roommate, his roommate's girlfriend, and his girlfriend's friend. Jane's mother

came to the room, unannounced, introduced herself and said that Jane Roe wanted to speak with

him alone. Once John was alone, Jane's mother left and Jane entered the room. Jane then

informed John that she had filed an anonymous report against him. She also made clear her

belief that she now had leverage over John stating that, "I'm holding a gun with one bullet and

perfect aim."

172. In this conversation Jane also conceded that she had not formed her own opinion

that she had been sexually assaulted but rather she was allowing other people to tell her that she

had been victimized. John then directly asked her whether she, herself, independently believed

she had been assaulted. She refused to answer.

173. In his interview, John informed Defendants Butler and Slater that he had felt

threatened during the course of this conversation. They did nothing. In fact, they made no effort

at all to interview the three people who had been thrown out of the room immediately before

Jane entered to threaten John.

174. Further, there can be no dispute that Jane made these comments. Although,

attempting to soften her actions, Jane Roe herself conceded to the investigators that she made

this threat but labelled it "metaphorical." Further, in her "Title IX Summary Follow-up" she

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again implicitly concedes she threatened John but argues that John had omitted other facts from

their conversation.

175. The school's own investigation, independent of John Doe's statement, learned of

actions of Jane Roe and her mother that clearly violated the school's policy related to both

bullying and hazing. Further, these acts completely intersected with the charges ultimately

leveled against John Doe and spoke to the falsity of the charges. Nonetheless, despite DU's

policy the school ignored these policy violations committed by Jane Roe despite being informed

of them by multiple witnesses, including Jane Roe herself.

176. According to the U.S. Department of Justice Title IX Legal Manual, Retaliation

protections are designed to preserve the integrity and effectiveness of the enforcement process

itself. Because of this purpose, the merits of any underlying complaint of sex discrimination are

irrelevant in assessing a retaliation complaint. The prohibited conduct is the act of retaliation

itself.

177. The Office for Civil Rights requires that Title IX include protections against

retaliation, and that school officials will not only take steps to prevent retaliation but also take

strong responsive action if it occurs. This includes retaliatory actions taken by the school and

school officials. When a school knows or reasonably should know of possible retaliation by other

students or third parties, including threats, intimidation, coercion, or discrimination (including

harassment), it must take immediate and appropriate steps to investigate or otherwise determine

what occurred. Title IX and Student Conduct staff and administrators at DU exhibited deliberate

indifference by their failure to prevent retaliation against John Doe.

VII. GENDER BIAS AGAINST JOHN DOE AS THE MALE ACCUSED

178. Pursuant to the U.S. Department of Education (DOE) Office for Civil Rights

(OCR) 2011 Dear Colleague Letter (DCL) guidelines and the University of Denvers own

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self-imposed Procedures, Defendants were required to conduct an impartial and unbiased

investigation process.

179. Title IX requires that The rights established under Title IX must be interpreted

consistently with any federally guaranteed due process rights. Department of Education Office

for Civil Rights Questions and Answers on Title IX and Sexual Violence.

180. Upon information and belief, Defendants knew that complaints of sexual

misconduct are disproportionately lodged by females against males.

181. Upon information and belief, Defendants have recognized the increased pressure

from the United States government to aggressively discipline male students accused of sexual

misconduct.

182. Defendants disparate and discriminatory treatment of John Doe was evident

throughout the investigation and adjudication process when they accepted Jane Roes version of

the events as more credible than John Does despite the lack of any reliable or corroborating

evidence, failed to interview witnesses identified by John Doe while interviewing every witness

identified by Jane Roe, disregarded the policy violations committed by Jane Roe against John

Doe, and deprived John Doe of his procedural rights.

183. The University demonstrated a presumption of guilt against John Doe as the male

accused of sexual misconduct when it overlooked potentially exculpatory evidence, ignored Jane

Roes contradictory and inconsistent statements and made baseless assessments of credibility.

The outright acceptance of Jane Roes version of the events, while ignoring the contradictory

evidence and testimony, can only be attributed to a bias against John Doe as the male accused.

184. Moreover, University of Denvers policies and procedures are set up to

disproportionately affect the male student population as a result of the higher incidence of female

complainants of sexual misconduct against male complainants of sexual misconduct.

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185. For instance, the Procedures provide considerable accommodations to the

complainant, who is overwhelmingly female, that are not afforded to respondents, including:

Notify the complainant of the right to make a report (or decline to


make a report) with law enforcement if the conduct is criminal in
nature, and if requested, assist them with notifying law
enforcement;

Notify complainant of the availability of medical treatment to


address physical or mental health concerns and preserve evidence;

Provide complainant with information about on and off campus


resources and the range of interim measures;

Discuss complainants expressed preference for manner of


resolution;

Explain the Universitys policy prohibiting retaliation;

Explain the role of a support person or advisor.

186. Additionally, the Procedures provide amnesty to complainants who report sexual

assault from being charged for policy violations related to the consumption of alcohol or other

drugs; however, no such accommodation is provided to respondents, who are typically male.

187. Furthermore, the Procedures explicitly advise that violations of the non-

consensual sexual contact provision of these Procedures typically result in a dismissal.

(emphasis added). As such, respondents, who are disproportionately male, charged with violating

the non-consensual sexual contact provision will categorically be dismissed from the University.

188. Finally, the interviews of the parties were conducted in such a manner that John

Doe was presumed guilty from the outset and forced to prove his innocence. Specifically,

Defendants interviewed Jane Roe and accepted her version of the events as true prior to even

speaking with John Doe. Subsequently, the interview of John Doe consisted solely of follow up

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questions to Jane Roes false statements. In this way, John Doe was denied the opportunity to

fully present his account of the events and was instead charged with the task of disproving Jane

Roes allegations.

189. Based on the foregoing, Defendants evidenced a clear gender bias against John

Doe as the male accused throughout the investigation and hearing process, in violation of Title

IX and his rights to fair process.

VIII. FAILURE TO ABIDE BY THE REQUISITE PREPONDERANCE OF THE


EVIDENCE STANDARD

190. The U.S. Department of Education Office for Civil Rights and the Universitys

Procedures require that a preponderance of the evidence standard be used to evaluate allegations

of sexual misconduct.

191. The Procedures defines preponderance of the evidence as: The standard of proof

that the Office of Equal Opportunity applies to its investigations. An allegation is proven by a

preponderance of the evidence if, based on the information provided, it is more likely to have

occurred than not to have occurred.

192. The preponderance of the evidence standard does not equate to judging the

accused as guilty until proven innocent. In fact, nowhere in the Department of Educations

guidelines or University of Denvers policies is such a standard referenced. However,

Defendants conducted an investigation which failed to afford John Doe the requisite presumption

of innocence.

193. Specifically, Defendants improperly placed the burden of proof on John Doe to

establish that Jane Roe had consented to the alleged sexual activity, when it accepted at face

value Jane Roes allegations.

194. Upon accepting Jane Roes uncorroborated account of the events, the Defendants

discriminated against John Doe, based solely on his gender; the only corroboration for Jane

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Roes version came from witnesses whose knowledge of the incident originated from Jane Roe

herself.

195. A fair reading of the evidence reveals that Jane Roes version of events lacked

any reliability; a presumption of guilt against John Doe was therefore required for a finding of

responsibility to be reached.

196. Accordingly, Defendants failed to utilize the requisite preponderance of the

evidence standard when they found Jane Roe to be more credible despite the lack of any

corroborating evidence, overlooked any evidence tending to support John Doe, while seeking out

evidence favorable to Jane Roe and presumed John Doe guilty from the outset. Defendants Slater

and Butler conducted an investigation calculated to reach the foregone conclusion that John Doe

was guilty of the misconduct alleged.

AS AND FOR A FIRST CAUSE OF ACTION


Violation of Title IX of the Education Amendments of 1972
Against University of Denver

197. John Doe repeats and realleges each and every allegation hereinabove as if fully

set forth herein.

198. Title IX of the Education Amendments of 1972 provides, in relevant part, that:

No person in the United States shall, on the basis of sex, be excluded from participation in, be

denied the benefits of, or be subjected to discrimination under any education program or activity

receiving Federal financial assistance.

199. University of Denvers Procedures provide: The University of Denver is

committed to establishing and maintaining a safe and nondiscriminatory educational

environment in which all individuals are treated with respect and dignity and [p]ursuant to

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Title IX of the Education Amendments of 1972, the University of Denver does not discriminate

on the basis of sex in its educational, extracurricular, athletic, or other programs or in the context

of employment.

200. Title IX of the Education Amendments of 1972 applies to an entire school or

institution if any part of that school receives federal funds; hence, athletic programs are subject

to Title IX of the Education Amendments of 1972, even though there is very little direct federal

funding of school sports.

201. Upon information and belief, Defendant University of Denver receives federal

funding for research and development.

202. Both the Department of Education and the Department of Justice have

promulgated regulations under Title IX that require a school to adopt and publish grievance

procedures providing for the prompt and equitable resolution of student... complaints alleging

any action which would be prohibited by Title IX or regulations thereunder. 34 C.F.R.

106.8(b) (Dept of Education); 28 C.F.R. 54.135(b) (Dept of Justice) (emphasis added). Such

prohibited actions include all forms of sexual harassment, including sexual intercourse, sexual

assault, and rape.7

203. The procedures adopted by a school covered by Title IX must not only ensure

the Title IX rights of the complainant, but must also [accord] due process to both parties

involved...8

204. The prompt and equitable procedures that a school must implement to accord

due process to both parties involved must include, at a minimum:

7
See generally U.S. Dept of Education, Office for Civil Rights, Revised Sexual Harassment Guidance: Harassment
of Students by School Employees, Other Students, or Third Parties -- Title IX (2001) at 19-20, 21 & nn.98-101.
8
Id. at 22 (emphasis added).

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Notice . . . of the procedure, including where complaints may be


filed;

Application of the procedure to complaints alleging [sexual]


harassment...;

Adequate, reliable, and impartial investigation of complaints,


including the opportunity to present witnesses and other evidence;

Designated and reasonably prompt timeframes for the major


stages of the complaint process; and

Notice to the parties of the outcome of the complaint......9

205. A school also has an obligation under Title IX to make sure that all employees

involved in the conduct of the procedures have adequate training as to what conduct constitutes

sexual harassment, which includes alleged sexual assaults. 10

206. Based on the foregoing, supra, at 85-201, Defendant University of Denver

deprived John Doe, on the basis of his sex, of his rights to due process and equal protection

through the improper administration of and/or the existence, in its current state, of Defendant

University of Denvers guidelines and regulations.

207. Based on the foregoing, supra, at 85-201 Defendant University of Denver

failed to conduct an adequate, reliable, and impartial investigation when it conducted its

investigation of the Incident and subsequent investigation and review, in a manner that was

biased against John Doe.

208. Upon information and belief, various administrators at University of Denver have

demonstrated an inherent predisposition against male students accused of sexual misconduct.

209. Upon information and belief, Defendant Chopp appointed Defendant McAllister

to serve as Title IX Coordinator at University of Denver effective June 1, 2015. Defendant

9
Id. at 20.
10
Id. at 21.

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McAllister, a well-known victims rights advocate, had been endorsed by the prosecution in

several high-profile trials as an expert in sexual assault victimization/reaction and trauma.

Further, Defendant McAllister is a former board member and executive director of the Colorado

Coalition Against Sexual Assault, works with clients including the Ending Violence Against

Women Project, the Gateway Battered Women's Shelter and has been faculty member of the

Sex Offender Management National Training team.

210. Thus, it is highly unlikely that Defendant McAllisters work history and current

involvement with victims advocacy projects has not resulted in an inherent bias against males

accused of sexual misconduct. Accordingly, her ability to remain impartial and unbiased while

overseeing the investigation and resolution of John Does case is highly questionable.

211. Furthermore, the University provides numerous resources for complainants,

including The Center for Advocacy, Prevention and Empowerment (CAPE). The center has

advocates who will advise on Title IX procedures, student conduct procedures and academic

accommodations; however, their website (http://www.du.edu/health-and-counseling-

center/cape/resources/index.html) does not state how their advocates address the needs of the

respondent, who are invariably male.

212. Significantly, the University of Denver For the Record Annual Security and

Fire Safety Report 2015 which was [p]roduced in compliance with the Jeanne Clery disclosure

of Campus Security Policy and Campus Crime Statistics Act (Clery Report), states as

follows:

If a victim is interested in learning more about their options for reporting through
the University Title IX Office, or is uncertain whether they want make such a
report, the report will be forwarded to Title IX. The Title IX Coordinator will
review the investigation process with the victim and options for participation in a
formal Title IX investigation. If the victim wishes to move forward, the
investigation will be initiated, resulting in a finding of responsibility. (sic., pg.
3)

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213. Incredibly, University of Denver stated for the Clery Report that the outcome of a

sexual assault complaint is predetermined by the Title IX Coordinator, and will result in a certain

finding of responsibility against the respondent. Evidently, John Doe was going to be found

responsible of the charges, simply by virtue of the fact that an investigation had been initiated.

214. Finally, the Report section on Equal Opportunity/ Sexual Harassment University

Policies states the following concerning prevention of sexual assault: Remember, sexual assault

is not just a womans issue. All genders are responsible for preventing sexual assault and rape.

Suggestions for men working to end sexual violence include: 1. Notice the Incident 2.

Interpret incident as emergency 3. Assume responsibility 4. Attempts to help. (pg.16,

emphasis added). This list, which could be addressed to any individual, was specifically

provided as suggestions for men. Thus, the Universitys Equal Opportunity/Sexual Harassment

University Policy assigned responsibility for prevention only to men, with no similar list of

suggestions provided to female students.

215. Upon information and belief, the University of Denver was under federal

investigation for two separate cases, one specifically involving a respondent, during the months

John Does case was investigated. Consequently, the University of Denvers mishandling of John

Does investigation was wrongfully informed by such federal pressure.

216. As outlined above, the outcome was predetermined and simply a motion into a

biased, prejudiced and implicitly unfair process aggravated by the recent investigations into

University of Denvers potential Title IX violations.

217. Based on the foregoing, Defendant University of Denver imposed an unwarranted

and excessive sanction on John Doe as a result of an erroneous outcome reached by a flawed

investigation.

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218. Based on the foregoing, male respondents in sexual misconduct cases at

University of Denver are discriminated against solely on the basis of sex. They are invariably

found guilty, regardless of the evidence, or lack thereof.

219. Based on the foregoing, John Doe was subjected to a biased, prejudiced and

explicitly unfair process in violation of Title IX.

220. As a result of the foregoing, John Doe is entitled to damages in an amount to be

determined at trial, plus prejudgment interest, attorneys fees, expenses, costs and disbursements.

AS AND FOR A SECOND CAUSE OF ACTION


Violation of the Fourteenth Amendment of the United States Constitution
Procedural Due Process Pursuant to 42 U.S.C. 1983
Against University of Denver

221. John Doe repeats and realleges each and every allegation hereinabove as if fully

set forth herein.

222. On April 4, 2011, the United States, by and through its agent the United States

Department of Education, sent a 19-page Dear Colleague letter to colleges and universities all

over the country, stating that sexual violence on campus was a form of sexual harassment

prohibited by Title IX (Dear Colleague Letter).

223. Reversing previous federal policy, the Dear Colleague Letter threatened colleges

with hundreds of millions of dollars in de-funding penalties if they did not immediately begin

investigating and adjudicating allegations of campus sexual assault under detailed procedures

and terms dictated by the federal government.

224. For example, and without limitation, as a result of the Dear Colleague Letter and

later statements, actions, and directives issued by the United States, colleges were as of 2015:

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(i) Required to investigate and adjudicate campus sexual assault allegations


regardless of whether the complainant reported his or her allegations to the police
(whereas previous federal policy had permitted colleges to allow law enforcement
to handle allegations of sexual assault);

(ii) Required to establish a coordinated and centralized investigative and adjudicative


procedure according to detailed rules mandated by the federal government and
headed by a Title IX coordinator;

(iii) Required to protect the anonymity of students accusing another student of sexual
assault if the student making the allegations so requests;

(iv) Required to apply a preponderance of the evidence standard when adjudicating


such allegations (whereas previously colleges frequently applied higher
evidentiary standards, such as the clear and convincing evidence standard);

(v) Required not to allow cross-examination by the accused student;

(vi) Required or strongly encouraged to expel students that the college finds to have

engaged in unconsented-to sexual intercourse with another student.

225. Since 2011, the United States has consistently reaffirmed and adhered to the

threat of substantial monetary penalties made in the Dear Colleague Letter. For example, in July

2014, former DOE Assistant Secretary for Civil Rights Catherine Lhamon stated that she would

strip federal funding from any college found to be non-compliant with the requirements of the

Dear Colleague Letter. Do not think its an empty threat, Lhamon warned.

226. Upon information and belief, University of Denver so acted in response to the

federal governments threat that colleges refusing to comply would be found in violation of Title

IX and be subject to extremely substantial, indeed crippling, monetary penalties.

227. In fact, demonstrating its attempted compliance with the 2011 Dear Colleague

Letter, University of Denvers 2015 Clery Report annual disclosure of crime statistics reveals

that University of Denver investigated 2 instances of forcible sex offenses in 2011; 6 instances of

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forcible sex offenses on campus in 2012; 8 instances of forcible sex offenses in 2013; 16

instances of sexual assault on campus in 2014; and 15 instances in 2015.

228. Upon information and belief, since the 2011 Dear Colleague Letter was issued,

the number of male students disciplined by the University of Denver for sexual misconduct has

increased considerably.

229. Accordingly, University of Denver was coerced by the United States into

complying with the Title IX investigative and adjudicatory process mandated by the Dear

Colleague Letter and by subsequent federal actions, statements, and directives.

230. Defendants need and desire to acquiesce to former President Obamas

administrations Dear Colleague letter and trample the due process rights of its students is

confirmed by the current United States Department of Education Secretary, Betsy Devos, who

has recently been quoted as saying a system without due process serves no one.

https://www.google.com/amp/amp.usatoday.com/story/493320001/

231. University of Denver applied the investigative and adjudicatory process dictated

to it by the federal government when it investigated and adjudicated Jane Roes complaint

against John Doe.

232. Under clear and controlling federal constitutional case law, a private actor

becomes a state actor when the challenged activity results from the States exercise of coercive

power.

233. Under clear and controlling federal constitutional case law, a private actor

required by the United States to investigate and adjudicate alleged violations of a federal statute

under terms and procedures dictated by the federal government is a state actor when engaging in

such investigation and adjudication.

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234. University of Denver has taken steps to ensure compliance with the Dear

Colleague Letter, out of fear of negative publicity and rescission of federal funds.

235. Accordingly, when University of Denver investigated and adjudicated Jane Roes

sexual assault complaint against John Doe, and when it expelled John Doe after reaching its

conclusion, University of Denver was a state actor and was therefore required to honor the rights

and guarantees set forth in the United States Constitution.

236. In the course of such investigation and adjudication, University of Denver

flagrantly violated John Does clearly established rights under the Due Process Clause of the

Fourteenth Amendment through its repeated acts of gender bias and of deprivation of the

minimal requirements of procedural fairness. For instance:

The notice of charge letter failed to identify the complainant, the date and location of
the alleged incident or the specific policies allegedly violated;

As John Doe was not provided a copy of Jane Roes complaint, he was forced to
participate in the investigation process, answer questions and begin formulating his
defense to the charges, without being notified of the exact allegations against him, or
the policies he allegedly violated;

The University issued the Preliminary Report while Plaintiff was unable to access it,
could not view the full report and was unable to seek the advice of his support person;

The Universitys single investigator model deprived Plaintiff of the right to have a
hearing on the charges against him, thus eliminating his opportunity to confront his
accuser, question any witnesses against him and present his defense before an
impartial decision maker.

237. Based on the foregoing, University of Denver was a state actor when it violated

the rights and guarantees set forth in the Fourteenth Amendment of the United States

Constitution during the investigation and adjudication of Jane Roes sexual misconduct

complaint against John Doe.

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238. Based on the foregoing, DU failed to properly notify John Doe of the allegations

against him in violation of his fundamental procedural rights and clearly established law.

239. Based on the foregoing, DU deprived John Doe of an opportunity to be heard and

participate in a meaningful manner in violation of his fundamental procedural rights and clearly

established law.

240. Based on the foregoing, in expelling John Doe from the University, DU deprived

Plaintiff of his guaranteed liberty and property rights without due process.

241. As a result of the foregoing, John is entitled to damages in an amount to be

determined at trial, plus prejudgment interest, attorneys fees, expenses, costs and disbursements.

AS AND FOR A THIRD CAUSE OF ACTION


Breach of Contract
Against University of Denver

242. John Doe repeats and realleges each and every allegation hereinabove as if fully

set forth herein.

243. Based on the aforementioned facts and circumstances, University of Denver

created express and implied contracts when it offered, and John Doe accepted, admission to

University of Denver and paid the required tuition and fees.

244. Based on the aforementioned facts and circumstances, Defendant University of

Denver breached express and/or implied agreement(s) with John Doe.

245. Defendant University of Denver committed several breaches of its agreements

with John Doe during the investigation and hearing process. A non-exhaustive list of University

of Denvers breaches includes the following:

Defendants failed to conduct a thorough and impartial investigation

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246. The University of Denvers Procedures specify that the investigation is designed

to provide a fair and reliable gathering of the facts. The investigation will be thorough, impartial

and fair, and all individuals will be treated with appropriate sensitivity and respect.

247. Notwithstanding, University of Denver performed a one sided and biased

investigation in favor of Jane Roes allegations of sexual misconduct.

248. Based on the foregoing, supra, at 85-201the investigation was replete with

procedural errors including, but not limited to:

the failure to properly investigate and collect all available


evidence;

the disregard of John Does witnesses while interviewing all of


Jane Roes witnesses;

the failure to include information provided by John Doe in the


investigative Report;

the acceptance of Jane Roes allegations despite witness statements


to the contrary;

the failure to collect Jane Roes medical records, instead accepting


as conclusive the portion provided by Jane Roe herself;

the complete disregard of contradictions and inconsistencies in


Jane Roes statements when making assessments of credibility; and

a material misrepresentation of the charges brought against John


Doe.

249. Based on the foregoing, supra, at 85-201, due to a lack of experience and

training on the part of the investigators and a variety of procedural errors, Defendants failed to

perform a thorough and impartial investigation process, in violation of their contractual

obligations to John Doe.

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University of Denver deprived John Doe an equal opportunity to be heard

250. University of Denvers Procedures provide that Complainant and Respondent

will have an equal opportunity to be heard, to submit information, and to identify witnesses who

may have relevant information.

251. Based on the foregoing, supra, at 85-201 the University breached its contract

with John Doe when it selectively interviewed witnesses favorable to Jane Roe despite their lack

of personal knowledge, overlooked potentially exculpatory evidence, and failed to interview

witnesses identified by John Doe who had direct knowledge of the Incident.

252. Accordingly, John Doe was denied an equal opportunity to be heard, to submit

information and to identify witnesses in support of his defense, in violation of University of

Denvers Procedures and his right to fair process.

253. As a direct and foreseeable consequence of the foregoing breaches, John Doe

sustained tremendous damages, including, without limitation, emotional distress, loss of

educational and career opportunities, economic injuries and other direct and consequential

damages.

254. John Doe is entitled to recover damages for Defendant University of Denvers

breach of the express and/or implied contractual obligations described above.

255. As a direct and proximate result of the above conduct, actions and inactions, John

Doe has suffered physical, psychological, emotional and reputational damages, economic

injuries and the loss of educational and career opportunities.

256. As a result of the foregoing, John Doe is entitled to damages in an amount to be

determined at trial, plus prejudgment interest, attorneys fees, expenses, costs and disbursements.

AS AND FOR A FOURTH CAUSE OF ACTION


Breach of the Covenant of Good Faith and Fair Dealing
Against University of Denver

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257. John Doe repeats and realleges each and every allegation hereinabove as if fully

set forth herein.

258. Based on the aforementioned facts and circumstances, Defendant University of

Denver acted in bad faith when it meted out a disproportionate Sanction of expulsion

notwithstanding the flawed investigative process and lack of evidence in support of Jane Roes

claims of sexual misconduct.

259. Based on the aforementioned facts and circumstances, Defendant University of

Denver breached and violated a covenant of good faith and fair dealing implied in the

agreement(s) with John Doe.

260. As a direct and foreseeable consequence of these breaches, John Doe sustained

tremendous damages, including, without limitation, emotional distress, loss of educational and

career opportunities, economic injuries and other direct and consequential damages.

261. John Doe is entitled to recover damages for Defendant University of Denvers

breach of the express and/or implied contractual obligations described above.

262. As a result of the foregoing, John Doe is entitled to damages in an amount to be

determined at trial, plus prejudgment interest, attorneys fees, expenses, costs and disbursements.

AS AND FOR A FIFTH CAUSE OF ACTION


Promissory Estoppel
Against University of Denver

263. John Doe repeats and realleges each and every allegation hereinabove as if fully

set forth herein.

264. University of Denvers various policies constitute representations and promises

that University of Denver should have reasonably expected to induce action or forbearance by

John Doe.

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265. University of Denver expected or should have expected John Doe to accept its

offer of admission, incur tuition and fees expenses, and choose not to attend other colleges based

on its express and implied promises that University of Denver would not tolerate, and John Doe

would not suffer, discrimination or harassment by fellow students or faculty members and would

not deny John Doe his procedural rights should he be accused of a violation of University of

Denvers policies.

266. John Doe relied to his detriment on these express and implied promises and

representations made by University of Denver, by choosing to attend University of Denver rather

than other schools of equal caliber and paying the required tuition and fees.

267. These express and implied promises and representations made by University of

Denver must be enforced to prevent substantial injustice to John Doe.

268. Based on the foregoing, University of Denver is liable to John Doe based on

Promissory Estoppel.

269. As a direct and proximate result of the above conduct, John Doe sustained

tremendous damages, including, without limitation, emotional distress, loss of educational and

career opportunities, economic injuries and other direct and consequential damages.

270. As a result of the foregoing, John Doe is entitled to damages in an amount to be

determined at trial, plus prejudgment interest, attorneys fees, expenses, costs and disbursements

AS AND FOR A SIXTH CAUSE OF ACTION


Negligence Against All Defendants

271. John Doe repeats and realleges each and every allegation hereinabove as if fully

set forth herein.

272. Defendants owed duties of care to John Doe, arising from the obligations

delineated in University of Denvers Procedures, and directives issued by the U.S. Department of

Educations Office of Civil Rights. Such duties included, without limitation, a duty of reasonable

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care to allow John Doe an equal opportunity to present information and witnesses in support of

his defense; a duty of care to conduct an impartial and thorough investigation of the allegations

of sexual misconduct against him; and a duty of care to utilize the preponderance of the evidence

standard in reaching a determination.

273. Based on the foregoing, supra, at 85-201 Defendants breached their duties

owed to John Doe.

274. As a direct and proximate result of the above conduct, John Doe sustained

tremendous damages, including, without limitation, emotional distress, loss of educational and

career opportunities, economic injuries and other direct and consequential damages.

275. As a result of the foregoing, John Doe is entitled to damages in an amount to be

determined at trial, plus prejudgment interest, attorneys fees, expenses, costs and disbursements.

PRAYER FOR RELIEF

WHEREFORE, for the foregoing reasons, John Doe demands judgment against

Defendants as follows:

(i) on the first cause of action for violation of Title IX of the Education

Amendments of 1972, a judgment awarding John Doe damages in an amount to be determined

at trial, including, without limitation, damages to physical well-being, emotional and

psychological damages, damages to reputation, past and future economic losses, loss of

educational and career opportunities, and loss of future career prospects, plus prejudgment

interest, attorneys fees, expenses, costs and disbursements;

(ii) on the second cause of action for violation of the Fourteenth Amendment

Procedural Due Process, a judgment awarding John Doe damages in an amount to be

determined at trial, including, without limitation, damages to physical well-being, emotional

and psychological damages, damages to reputation, past and future economic losses, loss of

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educational and career opportunities, and loss of future career prospects, plus prejudgment

interest, attorneys fees, expenses, costs and disbursements;

(iii) on the third cause of action for breach of contract, a judgment awarding John

Doe damages in an amount to be determined at trial, including, without limitation, damages to

physical well-being, emotional and psychological damages, damages to reputation, past and

future economic losses, loss of educational and career opportunities, and loss of future career

prospects, plus prejudgment interest, attorneys fees, expenses, costs and disbursements;

(iv) on the fourth cause of action for breach of the covenant of good faith and fair

dealing, a judgment awarding John Doe damages in an amount to be determined at trial,

including, without limitation, damages to physical well-being, emotional and psychological

damages, damages to reputation, past and future economic losses, loss of educational and

career opportunities, and loss of future career prospects, plus prejudgment interest, attorneys

fees, expenses, costs and disbursements;

(v) on the fifth cause of action for promissory estoppel, a judgment awarding John

Doe damages in an amount to be determined at trial, including, without limitation, damages to

physical well-being, emotional and psychological damages, damages to reputation, past and

future economic losses, loss of educational and career opportunities, and loss of future career

prospects, plus prejudgment interest, attorneys fees, expenses, costs and disbursements;

(vi) on the sixth cause of action for negligence, a judgment awarding John Doe

damages in an amount to be determined at trial, including, without limitation, damages to

physical well-being, emotional and psychological damages, damages to reputation, past and

future economic losses, loss of educational and career opportunities, and loss of future career

prospects, plus prejudgment interest, attorneys fees, expenses, costs and disbursements;

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(vii) by reason of the foregoing, John Doe requests, pursuant to 28 U.S.C. 2201, a

declaration that: (i) the outcome and findings made by University of Denver be reversed; (ii)

John Does reputation be restored; (iii) John Does disciplinary record be expunged; (iv) the

record of John Does expulsion from University of Denver be removed from his education file;

(v) any record of the complaint against John Doe be permanently destroyed; (vi) John Doe be

readmitted to University of Denver for the Fall 2017 semester; and (vii) University of Denvers

rules, regulations and guidelines are unconstitutional as applied; and

(vii) awarding John Doe such other and further relief as the Court deems just,

equitable and proper.

JURY DEMAND

John Doe herein demands a trial by jury of all triable issues in the present matter.

Dated this 15th day of August 2017.


/s/ Michael J. Mirabella
[e-filing-August 15, 2017]
______________________________
Michael J. Mirabella, Esq.
420 East 17th Avenue, Suite 400
Denver, CO 80203
720-931-2094
mmirabella@mbellalaw.com

-and-

/s/ Andrew T. Miltenberg


[e-filing-August 15, 2017]
______________________________
Andrew T. Miltenberg, Esq.
Stuart Bernstein, Esq.
Tara Davis, Esq.
Nesenoff & Miltenberg LLP
363 7th Avenue, Fifth Floor
New York, NY 10001
212-736-4500
amiltenberg@nmllplaw.com
sbernstein@nmllplaw.com
tdavis@nmllplaw.com
Counsel for Plaintiff

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