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Case 3:19-cv-12484-FLW-ZNQ Document 31 Filed 03/30/20 Page 1 of 26 PageID: 1235
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF NEW JERSEY
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`SERGIO VERDU,
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` Plaintiff,
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` v.
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`THE TRUSTEES OF
`PRINCETON UNIVERSITY, et al.,
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` Defendants.
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`
`
`I.
`
`INTRODUCTION
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`Civ. Action No. 19-12484 (FLW)
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`OPINION
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`Plaintiff Sergio Verdu (“Plaintiff”), a former professor in the Department of Electrical
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`Engineering at Princeton University (the “University”), was terminated from his employment with
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`the University in September 2018. His termination followed two separate investigations by the
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`University, which concluded that Plaintiff had violated the University’s rules and policies
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`governing sexual misconduct, prohibiting certain relationships between teachers and students, and
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`requiring faculty members to be honest during interviews with investigators. In this action,
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`Plaintiff sues the University, the University’s Board of Trustees, and certain administrators of the
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`University who were involved in the investigations (collectively, “Defendants”),1 claiming, among
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`other things, that the University’s proceedings were tainted with gender bias against him. The
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`Complaint asserts claims for violations of Title IX of the Education Amendments of 1972
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`1
`The Complaint names the following administrators of the University as defendants: Christopher L.
`Eisgruber, Deborah A. Prentice, Regan Crotty, Toni Marlene Turano, Lisa Michelle Schreyer, Michele
`Minter, Claire Gmachl, Cheri Burgess, Lynn William Enquist, Susan Tufts Fiske, Carolina Mangone,
`Harvey S. Rosen and Irene Small.
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`1
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`

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`(Counts I thru III) and of Title VII of the Civil Rights Act of 1964 (Count IV). The Complaint
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`also asserts a host of state statutory and common law claims (Counts V thru XIV).
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`Presently before the Court is Defendants’ motion to dismiss the Complaint pursuant Rule
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`12(b)(6) of the Federal Rules of Civil Procedure. For the reasons set forth below, Defendants’
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`motion is GRANTED IN PART and DENIED IN PART. Plaintiff’s federal claims (Counts I
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`thru IV) are dismissed for failure to state a claim, and the Court declines to exercise supplemental
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`jurisdiction over Plaintiff’s state law claims (Counts V thru XVI) at this time. Plaintiff is given
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`leave to file an amended complaint to replead his federal claims, in a manner consistent with this
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`Opinion, within forty-five (45) days. In lieu of filing an amended complaint, Plaintiff may pursue
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`his state law claims in state court.
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`II.
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`BACKGROUND2
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`Plaintiff taught at the University as a professor for nearly 35 years without incident until
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`2017. (Compl. ¶¶ 2, 49-50.) In April 2017, a twenty-five-year-old female graduate student,
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`Yeohee Im (“Im”), reported to the University’s Title IX Office that Plaintiff had sexually harassed
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`her. (Id. ¶¶ 118-119.) The University convened a Title IX panel (“Panel”) to conduct an
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`investigation pursuant to its Sexual Misconduct Policy (the “First Investigation”). (Id. ¶¶ 76-91,
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`125.) The Panel ultimately found Plaintiff responsible for sexual harassment. (Id. ¶¶ 11, 164.)
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`On June 9, 2017, the Dean of the Faculty disciplined Plaintiff for violating the Sexual Misconduct
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`Policy by, among other things, placing him on a one-year probation. (Id. ¶¶ 165, 167.)
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`Plaintiff alleges that, following the conclusion of the First Investigation, Im believed that
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`the sanction Plaintiff received was inadequate and, as a result, waged a public campaign against
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`2
`In this Background section, I provide a brief overview of the facts that are pertinent to this motion.
`In the Discussion section, infra, I set forth a more detailed recitation of the relevant facts that are alleged
`by Plaintiff in support of each of his claims.
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`2
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`

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`him and the University. (Id. ¶¶ 177-208.) In the course of Im’s campaign, Plaintiff alleges that
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`Im committed numerous violations of the University’s policies. For example, Plaintiff alleges that
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`Im disclosed confidential records to news outlets, commented on the case to journalists who
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`published articles about it, encouraged social media posts against Plaintiff, and filed complaints
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`with professional associations to which Plaintiff belonged. (Id. ¶¶ 12, 177-226.) Plaintiff alleges
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`that these efforts ultimately led to calls for his termination. (Id. ¶ 13.) Plaintiff further alleges that
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`the University refused to address Im’s violations of the University’s Title IX policies or remedy
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`the increasingly aggressive harassment and hostile environment caused by Im’s activities.
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`(Id. ¶¶ 209-211, 215.)
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`In September 2017, officials at the University told Plaintiff that it was commencing a
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`second investigation into reports that Plaintiff may have had a romantic relationship with a
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`different graduate student (the “Second Investigation”). (Id. ¶ 239.) The student, E.S., had been
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`a student in two of Plaintiff’s classes in 2011, and Plaintiff had served as a reader on her
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`dissertation committee in Fall 2015. (Id. ¶¶ 235-236.) Witnesses reported that they had seen
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`Plaintiff and E.S. kissing at a bar in Hong Kong during a conference, and photographs emerged of
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`a man and woman kissing who appeared to be Plaintiff and E.S. (Id. ¶ 227.) Plaintiff alleges that
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`Im unearthed this evidence because she was dissatisfied with the outcome of the First
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`Investigation. (Id. ¶ 226.)
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`The University’s Rules and Procedures of the Faculty, at the time, prohibited “sexual or
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`romantic relationship[s] involv[ing] individuals in a teacher-student relationship (e.g. being
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`directly or indirectly taught, supervised or evaluated).” (Id. ¶ 229.) Plaintiff and E.S. both denied
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`that any relationship had occurred during interviews with investigators. (Id. ¶¶ 124, 250, 299.)
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`Notwithstanding those denials, the investigators ultimately concluded that Plaintiff and E.S. had
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`3
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`engaged in a romantic relationship during the time when he evaluated her dissertation. (Id. ¶ 261.)
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`Plaintiff now admits in the Complaint that he and E.S. commenced a relationship in Spring 2014.
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`(Compl. ¶ 235.) That relationship was ongoing during the period when Plaintiff evaluated E.S.’s
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`dissertation. (Id. ¶ 298(h).)
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`On May 21, 2018, the University’s President issued a memo to the University’s Board of
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`Trustees recommending that Plaintiff be dismissed. (Id. 304.)3 The memo concluded that Plaintiff
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`lied during the Second Investigation; his lies were substantial and material under the University’s
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`rules and policies; the lies justified dismissal; Plaintiff also violated the University’s policies on
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`consensual relations; and neither Im nor Cuff (a former Assistant Professor who allegedly blamed
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`his failure to obtain tenure on Plaintiff, see Compl. ¶ 4) influenced the proceedings in a manner
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`that could excuse Plaintiff’s conduct. (See Recommendation Memo, ECF 20-3.) On September
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`24, 2018, Plaintiff was notified that the University had terminated his employment effective
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`immediately. (Compl. ¶ 324.)
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`Plaintiff alleges that, in the course of the Second Investigation, the University and its
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`administrators violated numerous provisions of the University’s Rules and Procedures of the
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`Faculty and expanded the investigation to include baseless claims against him. (Id. ¶¶ 238-331.)
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`Plaintiff further alleges that the University and other defendants relied on gender stereotypes,
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`3
`Defendants attach this recommendation memo as an exhibit to their motion papers. (See Exhibit 1
`to Declaration of Christine E. Gage, ECF 20-3 (“Recommendation Memo”).) Because the Complaint
`quotes extensively from the recommendation memo and relies on it as the basis for multiple claims, this
`Court may consider the memo for the purposes of this motion to dismiss. See Buck v. Hampton Twp. Sch.
`Dist., 452 F.3d 256, 260 (3d Cir. 2006) (“In evaluating a motion to dismiss, we may consider documents .
`. . and any ‘matters incorporated by reference or integral to the claim[.]’” Pension Ben. Guar. Corp. v.
`White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993) (citing 5B Charles A. Wright & Arthur R.
`Miller, Federal Practice & Procedure § 1357 (3d ed. 2004)); see also Pension Ben. Guar. Corp. v. White
`Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993) (holding “that a court may consider an
`undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss if the
`plaintiff's claims are based on the document.”)
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`4
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`distorted the evidence and the applicable standards, and improperly relied upon Plaintiff’s
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`probation as a basis for his termination. (Id.) Plaintiff asserts that the University and other
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`defendants were motivated by external pressure and the need to repair the University’s tarnished
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`reputation, which resulted from: (i) numerous investigations by the Department of Education’s
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`Office of Civil Rights for the University’s alleged failure to properly respond to female students’
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`claims of sexual assault and harassment (id. ¶¶ 66-73); (ii) public criticism over the alleged sexual
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`harassment of a number of female students in the University’s German Department (id. ¶ 75); (iii)
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`criticism of the University by Im and Cuff for the results of the First Investigation (id. ¶¶ 180-187,
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`191-201, 208, 216-220); and (iv) the rebirth of the #MeToo movement, which had gained
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`momentum during the timeframe of the Second Investigation and contributed to further criticism
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`of the University and public calls for Plaintiff’s termination (id. ¶¶ 188-190, 202-207, 212-214,
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`221-225).
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`III. LEGAL STANDARD
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`Rule 12(b)(6) authorizes a defendant to move to dismiss for “failure to state a claim upon
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`which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “To survive a motion to dismiss, a
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`complaint must contain sufficient factual matter, accepted as true, to ‘state a claim for relief that
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`is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v.
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`Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the pleaded factual
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`content allows the court to draw the reasonable inference that the defendant is liable for the
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`misconduct alleged.” Id. This “plausibility standard” requires that the plaintiff allege “more than
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`a sheer possibility that a defendant has acted unlawfully,” but it “is not akin to a ‘probability
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`requirement.’” Id. (citing Twombly, 550 U.S. at 556). Although the court must accept the
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`allegations in the complaint as true, it is not compelled to accept “unsupported conclusions and
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`unwarranted inferences, or a legal conclusion couched as a factual allegation,” Morrow v. Balaski,
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`5
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`719 F.3d 160, 165 (3d Cir. 2013) (citation omitted). “Determining whether a complaint states a
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`plausible claim for relief [is] . . . a context-specific task that requires the reviewing court to draw
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`on its judicial experience and common sense.” Iqbal, 556 U.S. at 679. In deciding a Rule 12(b)(6)
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`motion, although “a district court . . . may not consider matters extraneous to the pleadings,” the
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`court may consider documents that are “integral to or explicitly relied upon in the complaint.” In
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`re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997) (citation omitted)
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`(emphasis in original).
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`IV. DISCUSSION
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`A.
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`Title IX Claims
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`Counts I, II, and III of the Complaint assert that the University violated Title IX of the
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`Education Amendments of 1972 by discriminating against Plaintiff on the basis of his gender.
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`(See Compl. ¶¶ 332-352 (Count I), ¶¶ 353-380 (Count II), ¶¶ 381-418 (Count III).)4 Title IX states
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`that “[n]o person . . . shall, on the basis of sex, be excluded from participation in, be denied the
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`benefits of, or be subjected to discrimination under any education program or activity receiving
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`Federal financial assistance.” 20 U.S.C. § 1681(a). Among other things, it “bars the imposition
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`of university discipline where gender is a motivating factor,” and it “is enforceable through an
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`implied private right of action . . . for monetary damages as well as injunctive relief.” Yusuf v.
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`Vassar Coll., 35 F.3d 709, 714-15 (2d Cir. 1994) (citations omitted). In most Title IX cases, a
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`plaintiff advances a claim under one of two theories: (1) an “erroneous outcome” theory; or (2) a
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`“selective enforcement” theory. Doe v. The Trustees of the Univ. of Pennsylvania, 270 F. Supp.
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`3d 799, 822 (E.D. Pa. 2017) (citation omitted); see also Yusuf, 35 F.3d at 714-16 (dividing Title
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`4
`Count I alleges a violation of Title IX with respect to the First Investigation. Counts II and III
`allege violations of Title IX with respect to the Second Investigation.
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`6
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`IX claims involving university disciplinary proceedings into two categories based on erroneous
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`outcome and selective enforcement theories).5 Occasionally, a plaintiff will also assert a Title IX
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`claim under a theory of “retaliation” for complaining of gender discrimination. Doe v. Mercy
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`Catholic Med. Ctr., 850 F.3d 545, 563-64 (3d Cir. 2017); see also Jackson v. Birmingham Bd. of
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`Educ., 544 U.S. 167, 173-74 (2005) (stating that “[r]etaliation against a person because that person
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`has complained of sex discrimination is another form of intentional sex discrimination
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`encompassed by Title IX’s private cause of action”). Plaintiff proceeds under all three theories.
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`(See Pl.’s Opp. at 7-20, 25-28.)
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`(1)
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`Erroneous Outcome
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`Under an “erroneous outcome” theory, a plaintiff asserts that he or she was “innocent and
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`wrongly found to have committed an offense.” Yusuf., 35 F.3d at 715. An erroneous outcome
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`challenge to university disciplinary proceedings requires a plaintiff to plead (1) “particular facts
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`sufficient to cast some articulable doubt on the accuracy of the outcome of the disciplinary
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`proceeding,” and (2) “particular circumstances suggesting that gender bias was a motivating factor
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`behind the erroneous finding.” Id. A complaint meets the first prong if it alleges “particular
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`evidentiary weaknesses behind the finding of an offense such as a motive to lie on the part of a
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`complainant or witnesses, particularized strengths of the defense, or other reason to doubt the
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`veracity of the charge.” Id. It may also allege procedural flaws affecting the evidence. Id. “[T]he
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`5
`Although a Second Circuit case, Yusuf has been cited by numerous courts in the Third Circuit as
`setting the standard for Title IX erroneous outcome/selective enforcement claims. See, e.g., Doe v. Trustees
`of Princeton Univ., 2020 WL 967860, at *2-3 (D.N.J. Feb. 28, 2020); Doe v. Rider Univ., 2020 WL 634172,
`at *7 (D.N.J. Feb. 4, 2020); Doe v. The Trustees of the Univ. of Pennsylvania, 270 F. Supp. 3d 799, 822
`(E.D. Pa. 2017); Saravanan v. Drexel Univ., 2017 WL 5659821, at *4-6 (E.D. Pa. Nov. 24, 2017); see also
`Doe v. Princeton Univ., 790 F. App’x 379, 383-84 (3d Cir. 2019) (affirming a decision of the district court
`that applied the Yusuf standard to a Title IX claim that was advanced under a selective enforcement theory).
`As such, I apply the standard from Yusuf in this case.
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`7
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`pleading burden in this regard is not heavy.” Id. However, “[i]f no such doubt exists based on the
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`record before the disciplinary tribunal, the claim must fail.” Id.
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`Once doubt has been cast on the accuracy of the proceedings, the plaintiff must present
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`“particularized allegation[s] relating to a causal connection between the flawed outcome and
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`gender bias.” Id. “[A]llegations of a procedurally or otherwise flawed proceeding that has led to
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`an adverse and erroneous outcome combined with a conclusory allegation of gender discrimination
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`is not sufficient to survive a motion to dismiss.” Id. The allegations must “go well beyond the
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`surmises of the plaintiff as to what was in the minds of others and involve provable events that in
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`the aggregate would allow a trier of fact to find that gender affected the outcome of the disciplinary
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`proceeding.” Id. at 716. Allegations that may support gender bias include “statements by members
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`of the disciplinary tribunal, statements by pertinent university officials, or patterns of decision-
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`making that also tend to show the influence of gender.” Id. at 715.6
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`In this case, Plaintiff contends that the allegations in the Complaint support claims under
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`an erroneous outcome theory with respect to both the First Investigation and the Second
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`6
`In his opposition papers, Plaintiff asserts that “[t]he second prong—gender bias as a motivating
`factor—can be met by pleading ‘specific facts that support a minimal plausible inference of [gender]
`discrimination” (Defs.’ Opp. at 11 (quoting Doe v. Columbia Univ., 831 F.3d 46, 56 (2d Cir. 2016).) I
`note that at least one circuit has rejected this modified pleading standard. See Doe v. Miami Univ., 882
`F.3d 579, 5889 (6th Cir. 2018) (stating that the Second Circuit’s “modified pleading standard . . . lacks
`support from our precedent . . . [and] [a]ccordingly, in this Circuit, [the plaintiff] must meet the requirements
`of Twombly and Iqbal for each of his claims”). The Third Circuit has not yet addressed this issue, but its
`precedent suggests that it would follow the Sixth Circuit in rejecting the Columbia decision. As the Sixth
`Circuit explained in Miami Univ., the Columbia decision was partially premised on the Second Circuit’s
`decision in Littlejohn v. City of New York, 795 F.3d 297 (2d Cir. 2015). In Littlejohn, the Second Circuit
`reconciled Twombly and Iqbal with the Supreme Court’s holding in Swierkiewicz v. Sorema N.A., 534 U.S.
`506 (2002). While Swierkiewicz remains good law in some circuits, the Third Circuit has explicitly held
`that the pleading standard set forth in Swierkiewicz is incompatible with Twombly and Iqbal. See Fowler
`v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009) (claiming that Swierkiewicz “has been specifically
`repudiated by both Twombly and Iqbal”). As such, based on the Third Circuit’s repudiation of Swierkiewicz,
`I adopt the Sixth Circuit’s approach by applying the general Twombly/Iqbal pleading standard.
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`8
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`Investigation. I address the sufficiency of the allegations as they relate to each of the two
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`investigations, in turn, below.
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`First Investigation (Count I). Defendants contend that Plaintiff has failed to allege a Title
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`IX claim based on an erroneous outcome theory as to the First Investigation, because, “even
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`assuming the outcome was flawed” (i.e., the first prong), Plaintiff does not allege that the erroneous
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`outcome was causally connected to gender bias (i.e., the second prong). (Defs.’ Br. at 11-13.) In
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`response, Plaintiff contends that “the Complaint properly alleges that [the University] exhibited
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`gender bias because the infantilization of women plays into archaic gender stereotypes about
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`women as chaste, sexually innocent, naive, lacking sexual autonomy, and needing protection from
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`men, who are considered the sexual aggressors.” (Pl.’s Opp. at 11-12 (citing Compl. ¶¶ 151, 343).)
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`Plaintiff also contends that the Complaint “alleges a considerable connection between the Im
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`investigation and the specific pressure placed on the University to prosecute male professors and
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`protect and believe female graduate students in the time period leading up to Ms. Im’s complaint
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`against Plaintiff.” (Id. at 12.) In support of the latter contention, Plaintiff cites to allegations in
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`the Complaint, which allege that, “in addition to [the University]’s history of complaints and issues
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`with the [Department of Education’s] Office for Civil Rights for purportedly failing to sufficiently
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`respond to allegations of sexual misconduct by female students, [the University] faced
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`considerable pressure from its student body to remedy a perceived atmosphere of gender bias
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`specifically against female graduate students, like Im, by male faculty, like Plaintiff.” (Id. at 12
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`(citing Compl. ¶¶ 66-75, 344).) Plaintiff also cites to allegations that, during the 2016-2017
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`academic year, three female graduate students in the German Department left the University
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`abruptly, prompting a town hall meeting to address systematic and long-term sexual harassment
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`within the Department. (Id. at 15 (citing Compl. ¶ 75).) Plaintiff avers that the town hall meeting
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`took place in May 2017, which was the same timeframe when the University’s Title IX office was
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`deciding Im’s case against Plaintiff. (Id.)
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`Having considered Plaintiff’s allegations, I cannot find that the Complaint supports a
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`plausible inference that, because of his gender, Plaintiff was found to have violated the
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`University’s Sexual Misconduct Policy.7 As an initial matter, I note that Plaintiff has neither
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`alleged any statements by officials showing gender bias in his disciplinary proceedings, nor has he
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`alleged any pattern or practice designed to produce gender-specific outcomes. Instead, Plaintiff
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`relies on allegations that the University infantilized Im during the First Investigation, for instance
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`by faulting Plaintiff for offering Im alcohol even though she was of legal drinking age, or by
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`faulting Plaintiff for inviting Im to his home to watch movies featuring sexual assault and full
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`frontal nudity even though she praised these films. (See Pl.’s Opp. at 11-12 (citing Compl. ¶¶ 151,
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`343). However, Plaintiff fails to explain how “infantilizing” an accuser amounts to bias against
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`men. These allegations do not reference gender, let alone suggest that gender was a motivating
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`factor in the University’s decision. At most, these allegations show that the University exhibited
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`bias in favor of a younger student vis-a-vis an older professor, an inference having nothing to do
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`with gender.
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`Plaintiff’s allegations about pressure allegedly faced by the University from the Office of
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`Civil Rights and students in the German Department also do not support an inference of bias
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`against men. Although the Third Circuit has not had occasion to address this specific issue, other
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`courts have recognized that external pressure from campus organizations and government agencies
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`7
`Although Defendants do not contest the first prong of the analysis in the present motion, I note that
`Plaintiff alleges facts “sufficient to cast some articulable doubt on the accuracy of the outcome” of the First
`Investigation. Yusuf., 35 F.3d at 715. Specifically, the Complaint describes numerous instances where,
`during the course of the First Investigation, the University’s Title IX office allegedly withheld evidence
`from Plaintiff, ignored exculpatory evidence, accepted altered evidence submitted by Im, or failed to
`question Im’s credibility or narrative. (See Compl. ¶¶ 229-160.)
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`10
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`such as the Office of Civil Rights may “provide[] a backdrop that, when combined with other
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`circumstantial evidence of bias in [the plaintiff’s] specific proceeding, gives rise to a plausible
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`[Title IX] claim.” Doe v. Baum, 903 F.3d 575, 586 (6th Cir. 2018) (citing Twombly, 550 U.S. at
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`570). However, external pressure alone is not enough. Rather,“[i]n the cases where public
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`pressure was found to support claims of erroneous outcome, that public pressure targeted the
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`specific disciplinary action being challenged.” Doe v. Univ. of Cincinnati, 2018 WL 1521631, at
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`*6 (S.D. Ohio Mar. 28, 2018) (emphasis added); see also Doe v. Univ. of St. Thomas, 240 F. Supp.
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`3d 984, 992 (D. Minn. 2017) (“[T]his Court joins the majority of federal courts in finding a general
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`reference to federal pressure, by itself, is insufficient to show gender bias.”); Doe v. Univ. of Colo.,
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`255 F. Supp. 3d 1064, 1078 (D. Colo. 2017) (same); Doe v. Lynn Univ., Inc., 224 F. Supp. 3d
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`1288, 1294 (S.D. Fla. 2016) (same). In this case, Plaintiff does not point to any public pressure
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`directed at any single individual involved in his specific case, and the allegations in the Complaint
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`pertain to investigations and incidents that are unconnected to the First Investigation. Indeed, these
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`allegations are anything but specific to Plaintiff’s case: they concern federal investigations by
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`Office of Civil Rights into the University’s handling of sexual misconduct accusations by students;
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`and criticism focused on the German Department (to which Plaintiff did not belong). Without any
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`allegations specifically connecting the external pressure on the University to Plaintiff’s specific
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`case, there is simply no basis to plausibly infer that the outcome of the First Investigation was
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`motivated by his gender.
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`Second Investigation (Count III). Defendants contend that Plaintiff cannot sustain a claim
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`as to the Second Investigation based on an erroneous outcome theory because “he admits he lied
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`to University officials about his relationship” with E.S. (Defs.’ Br. at 14 (emphasis in original).)
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`Defendants further argue that, “[e]ven if [Plaintiff] disputes that his affair violated University
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`policy . . . , the admission that he violated the policy on Honesty and Cooperation in University
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`Matters is enough to prevent him from alleging his innocence, a required element of an erroneous
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`outcome claim.” (Id. (citing Doe v. Rider Univ., 2018 WL 466225, at *8 (D.N.J. Jan. 17, 2018)).)
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`In his opposition brief, Plaintiff does not directly address Defendants’ argument that his claim
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`must fail based on the admission that he lied. Instead, Plaintiff points to allegations in the
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`Complaint that show that the Second Investigation suffered from extensive procedural
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`irregularities and was infected by gender bias. (See Pl.’s Opp. at 16-20.)
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`I find that, regardless of the presence of any procedural irregularities or alleged gender bias
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`during the Second Investigation, Plaintiff’s claim under an erroneous outcome theory fails for the
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`simple reason that he has not sufficiently alleged his innocence. See Yusuf., 35 F.3d at 715 (stating
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`that, under an erroneous outcome theory, the “claim is that the plaintiff was innocent and wrongly
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`found to have committed an offense”). Indeed, rather than affirmatively alleging that Plaintiff is
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`innocent, the allegations in the Complaint support the opposite inference: that Plaintiff was guilty
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`of the charges for which he was ultimately terminated. Plaintiff alleges in the Complaint that he
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`and E.S. commenced a relationship in Spring 2014 (see Compl. ¶ 235), that the relationship was
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`ongoing during the period when Plaintiff evaluated E.S.’s dissertation (see id. ¶ 298(h)), and that
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`the University’s rules at the time prohibited “sexual or romantic relationship[s] involve[ing]
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`individuals in a teacher-student relationship (e.g. being directly or indirectly taught, supervised or
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`evaluated)” (id. ¶ 229). Moreover, Plaintiff admits that he lied during the investigation about his
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`relationship with E.S. (See Compl. ¶ 124 (stating that “Plaintiff . . . denied the relationship [with
`
`E.S.] when interviewed” by a member of the Title IX panel).) It was for this very conduct—
`
`engaging in a prohibited teacher-student relationship and lying to investigators—that the
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`University terminated Plaintiff’s employment. (See Recommendation Memo, ECF 20-3.)
`
`12
`
`

`

`Case 3:19-cv-12484-FLW-ZNQ Document 31 Filed 03/30/20 Page 13 of 26 PageID: 1247
`
`Because the undisputed facts, as alleged by Plaintiff, negate any inference that he was innocent,
`
`Plaintiff has failed to state a claim as to the Second Investigation based on an erroneous outcome
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`theory.
`
`(2)
`
`Selective Enforcement
`
`Under a selective enforcement theory, a plaintiff “asserts that, regardless of the student’s
`
`[or faculty member’s] guilt or innocence, the severity of the penalty and/or the decision to initiate
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`the proceeding was affected by the student’s [or faculty member’s] gender.” Yusuf, 35 F.3d at 715.
`
`Under a selective enforcement theory, a male plaintiff must allege that “a female was in
`
`circumstances sufficiently similar to his own and was treated more favorably by the [educational
`
`institution].” Tafuto v. N.J. Inst. of Tech., 2011 WL 3163240, at *2 (D.N.J. July 26, 2011)
`
`(alteration in original). Thus, when a male professor claims that a university selectively enforced
`
`a policy against him, he must identify a female professor who received better treatment even
`
`though she “engaged in the same conduct without such differentiating or mitigating circumstances
`
`that would distinguish their conduct or the [school’s] treatment of them for it.” Saravanan v.
`
`Drexel Univ., 2017 WL 5659821, at *6 (E.D. Pa. Nov. 24, 2017). I address the sufficiency of the
`
`allegations as they relate to each of the two investigations, in turn, below.
`
`First Investigation (Count I). Defendants assert that Plaintiff has failed to allege selective
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`enforcement as to the First Investigation because he has not identified any specific female who
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`was accused of similar conduct and treated more favorably by the University. (Defs.’ Br. at 9-11.)
`
`In response, Plaintiff cites to allegations in the Complaint that state, on information and belief,
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`female respondents and faculty members are formally investigated at a lower rate and are punished
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`less severely than similarly accused male respondents and faculty members. (Pl.’s Opp. at 8 (citing
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`Compl. ¶¶ 161-163, 346, 348).) Plaintiff also cites to allegations in the Complaint which allege
`
`that the University treated Plaintiff differently than Im, his female accuser, during the course of
`
`13
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`

`

`Case 3:19-cv-12484-FLW-ZNQ Document 31 Filed 03/30/20 Page 14 of 26 PageID: 1248
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`the First Investigation. (Pl.’s Opp. at 9 (citing Compl. ¶¶ 15, 192, 146-150, 157, 207, 210, 215,
`
`243, 255, 265, 304, 359-360, 400, 436, 441, 454).) Plaintiff contends that his female accuser is a
`
`sufficient comparator for the purposes of pleading his claim based on selective enforcement. (Id.)
`
`I do not agree with Plaintiff that Im is a sufficient comparator. A selective enforcement
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`claim requires a comparison between two similarly situated individuals—in the instant case, a male
`
`and female professor accused of similar conduct. See, e.g., Tafuto, 2011 WL 3163240, at *2-3;
`
`Saravanan, 2017 WL 5659821, at *6; Rider Univ., 2020 WL 634172, at *12. Im—the student
`
`complainant against Plaintiff during the First Investigation—“is not a counterpart for the purposes
`
`of a selective enforcement claim.” Doe v. Case W. Reserve Univ., 2015 WL 5522001, at *6 (N.D.
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`Ohio Sept. 16, 2015). Im was a student and Plaintiff was a professor; the University’s obligations
`
`and relationship to each were fundamentally different. Further, Plaintiff’s claim that the University
`
`treated Plaintiff differently during the course of the investigation is very different from Im’s claim
`
`that Plaintiff sexually harassed her. “To consider a student similarly situated, ‘the individuals with
`
`whom a plaintiff seeks to be compared must have engaged in the same conduct without such
`
`differentiating or mitigating circumstances that would distinguish their conduct or the [school’s]
`
`treatment of them for it.’” See Saravanan, 2017 WL 5659821, at *6 (emphasis and alteration in
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`original) (citation omitted). There is no suggestion that Im engaged in sexual harassment,
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`sounding the death knell for Plaintiff’s claim that Im is an appropriate comparator. Moreover,
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`Plaintiff’s allegations that female respondents are form

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