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Doe v. Colgate University

United States District Court, N.D. New York

October 31, 2017

JOHN DOE, Plaintiff,
v.
COLGATE UNIVERSITY, et ah, Defendants.

          MEMORANDUM-DECISION AND ORDER

          Lawrence E. Kahn, U.S. District Judge.

         I. INTRODUCTION

         Plaintiff John Doe, a former Colgate University student proceeding pseudonymously, brings this action to challenge Defendant Colgate University's decision to expel him because of sexual assault allegations by former Colgate students Jane Does 1, 2, and 3. Dkt. No. 1 ("Complaint") ¶¶ 1, 186. Plaintiff alleges (1) violations of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq.\ (2) violation of New York State Human Rights Law ("HRL") § 296(4); (3) other state statutory and common law claims. Id. ¶¶ 189-298. In addition to Colgate, Plaintiff names as Defendants current and former Colgate administrators Jeffrey Herbst, Suzy Nelson, Kimberly Taylor, Marilyn Rugg, Valerie Brogan, and Tamala Flack, individually and as Colgate's agents. Id. ¶ 1.

         Defendants moved for summary judgment on each of Plaintiff s claims, Dkt. No. 67 ("Summary Judgment Motion"), and to preclude the testimony of Plaintiff s proffered expert, Dkt. No. 85 ("Preclusion Motion"). For the reasons that follow, both of Defendants' motions are granted.

         II. BACKGROUND

         A. Factual History

         Plaintiff is a male who attended Colgate from 2011 until he was expelled in April 2015, his senior year, after being found responsible for three instances of sexual misconduct that occurred during the 2011-12 academic year. Compl. ¶¶ 1-4, 133.

         1. Relevant Colgate Policies

         a. Sexual Misconduct

         During the 2011-12 academic year, Colgate's Policy on Sexual Misconduct and Sexual Harassment ("Sexual Misconduct Policy") defined the violation "Sexual Misconduct I" as including "any sexual penetration ... by a man or a woman upon a man or a woman without effective consent." Dkt. No. 67-17 ("Taylor Exhibit G") at 5. The Policy defined "Sexual Misconduct II" as "any intentional sexual touching . . . with any object by a man or woman upon a man or woman without effective consent." Id. The Policy defined the violation "Sexual Exploitation" as sexual misconduct that does not constitute either of the above violations, but can include, in relevant part, "exposing one's genitals in non-consensual circumstances." Id.

         b. Colgate's Equity Grievance Policy ("EGP")

         Colgate's EGP imposes procedural rules to adjudicate alleged violations of the Sexual Misconduct Policy.[1] Dkt. No. 67-13 ("Taylor Declaration") ¶ 32. The EGP prescribes "no formal time limitation on the bringing of a complaint." Taylor Ex. G at 13. "During the investigation [of a complaint], the complainant and the respondent will have an equal opportunity to share information and request that witnesses be interviewed." Id. at 14. "Once an investigation is completed, the investigator(s) will meet with the associate provost for equity and diversity and the appropriate EGP co-chair, " and the associate provost then decides whether, "[b]ased on that meeting, " enough evidence exists to "proceed[] with the complaint process." Id. at 15. In cases where it is determined that a hearing is required, "the associate provost for equity and diversity will appoint a non-voting panel chair . . . and three members of the EGP to the hearing panel." Id. at 16. The panel chair is required to send a letter to the hearing participants "[a]t least one week prior to the hearing, " describing the allegations involved, the date of the hearing, and "a description of the applicable procedures." Id. During the hearing, "the complainant and the respondent will have a reasonable opportunity to present facts and arguments and to present questions through the chair." Id. at 17. After the hearing, the hearing panel decides the respondent's responsibility for the alleged EGP violations based on a preponderance of the evidence standard and what sanctions, if any, to impose. Id. at 18. Following the panel's decision, each party receives notice of the hearing's outcome, "which will include a rationale for the outcome." Id. at 20. Parties can appeal the decision. Id. at 20-21.

         2. Anti-Sexual Assault Advocacy at Colgate

         In April 2014, members of a Colgate student group called "Breaking the Silence" gathered "to raise awareness of sexual assault on Colgate's campus." Dkt. No. 73-2 ("Plaintiffs Exhibit 2"). Breaking the Silence released a statement in connection with the event that declared, "For too long, sexual assault and sexual abuse on this campus have been kept quiet." Id. In July 2014, defendant Rugg, Colgate's Title IX Coordinator and Associate Provost for Equity and Diversity, gave a presentation to campus tour guides, which stated that Colgate had "expelled students found responsible for violating [its] EGP process." Dkt. No. 73-1 ("Rugg Deposition") at 158-59.

         Breaking the Silence organized a Sexual Climate Forum held on October 27, 2014. Rugg Dep. at 162. The Forum featured a speaker who blamed fraternities for the majority of sexual assaults at Colgate, and argued for their abolition. Dkt. No. 67-11 ("Rugg Declaration") ¶ 36; see also Dkt. Nos. 73-3 ("Forum Article 1"), 73-4 ("Forum Article 2"), 73-5 ("Forum Article 3"). In Winter 2015, defendant Herbst, then the president of Colgate University, wrote an article in a Colgate publication that stated, "[N]early 20 percent of college-age women and about 6 percent of undergraduate men will be victims of attempted or actual sexual assault during their college years." Dkt. No. 73-27 ("Herbst Article") at 3. The article also mentioned a seminar called "Yes Means Yes, " which it hailed as "empowering our young men and women to effect change" regarding sexual assault. Id.

         3. EGP Training

         Rugg, as Colgate's Title IX Coordinator, was charged with attending and implementing training for Colgate administrators and faculty tasked with responding to sexual assault on campus. Rugg. Decl. ¶ 8. An EGP training presentation that Rugg delivered in Fall 2013 covered issues of sexual misconduct and consent. Dkt. No. 73-8 ("Plaintiffs Exhibit 8"). The presentation includes an example of effective consent, featuring the hypothetical parties "John and Kate." Id. at 4.[2] Another slide states, "a capable complainant's unreasonable failure to communicate her expectations to her partner may be grounds for departure from . . . recommended sanctions." Id. at 8. Another slide asks, "Did the sexual aggressor know of the incapacity of his partner?" Id. at 13. Rugg also attended a training in April 2014, hosted by the Association of Title IX Administrators ("ATIXA"). Rugg Dep. at 149. Attendees of this training were advised to refer to sexual assault complainants as "victims" when speaking to the complainant, but to refer to the complainant as "complainant" when speaking to the respondent. Id. Attendees at the training were also advised to discourage the respondent from "lawyer[ing] up and refus[ing] to give a statement." Id. at 150. Colgate did not incorporate these three practices into its EGP. Id; Dkt. No. 84 ("Reply") at 3.

         4. The Complaints Against Plaintiff

         On October 28 and 29, 2014, Colgate received three anonymous complaints-one by each of Jane Does 1, 2, and 3-accusing Plaintiff of sexually assaulting them. Dkt. No. 67-4 ("Defendants' Statement of Material Facts") ¶ 21. Jane Doe 1 alleged that, on October 28, 2011, she was heavily intoxicated at a party and accepted Plaintiffs offer to walk her home. Dkt. No. 67-18 ("Taylor Exhibit N") at 66. While walking her home, Plaintiff put his hands down Jane Doe 1 's underwear, making her uncomfortable. Id. Jane Doe 1 believed that Plaintiff followed her into her dorm room "under the guise of looking out for [her]." Id. While she was "laying in bed, " Plaintiff allegedly inserted his fingers into her vagina. Id.

         Jane Doe 2 alleged that, on February 11, 2012, she, Jane Doe 1, Plaintiff, and several other students smoked marijuana behind a building on campus, and Jane Doe 2 was allegedly "uncomfortable" because Plaintiff was touching and kissing her. Id. at 11. Jane Doe 2 states that she was highly intoxicated after mixing alcohol and marijuana. Id. Jane Does 1 and 2 hid in a bathroom in a dormitory building "to see if [Plaintiff] would leave while [they] stood inside." Id. Plaintiff was still waiting outside the bathroom when they exited, and Jane Doe 1 invited Jane Doe 2 to sleep in her room. Id. Plaintiff "overheard and proposed a sleepover." Li Plaintiff followed the two women into Jane Doe 1 's bed, and "touch[ed] [Jane Doe 2] all over." Id. Jane Doe 2 says that Jane Doe 1 left, "probably feeling uncomfortable, " and Plaintiff then "pulled his pants down and kept trying to force [Jane Doe 2] to touch his penis." Id. Jane Doe 2 entered "the fetal position" and "kept pulling [her hand] back." Id. at 12. Once Jane Doe 2 realized that she could leave, she told Plaintiff that she needed to use the bathroom. Id. The next day, Plaintiff sent Jane Doe 2 a text message that stated, "Hey, I don't remember anything that happened last night, but if I did something wrong, I'm sorry." Id. at 12.

         Jane Doe 3's complaint relates to the night of April 28, 2012. She alleged that she "consented to" leaving a party with Plaintiff to "make out" with him. Id. at 69. While walking back to Colgate's dormitories, Jane Doe 3 repeatedly refused Plaintiffs request for sex. Id. They began kissing, and Plaintiff allegedly "tried to finger" her. Id. Jane Doe 3 "kept pushing his hand away and he kept shoving his hand up [her] skirt and past [her] spandex, " and eventually penetrated her vagina with his finger. Id. at 69. Jane Doe 3 said she wanted to go home, and entered her dormitory building, Andrews Hall. Id. Plaintiff followed her, "shepherded" her into a bathroom, and, without her consent, touched her breasts, put his hands down her pants, exposed his penis to her, and tried to "push [it] against" her. Id. Jane Doe 3 pushed him and ran out of the bathroom. Id. Several days after the incident, she "told [Plaintiff] that what he did was unacceptable and he could get in big trouble for it." Id. at 70.

         5. The Investigation

         a. Investigators' Meetings with the Complainants

         On November 7, 2014, Jane Doe 2 approached Rugg, revealed that she authored one of the complaints against Plaintiff, and asked to file a "formal complaint." SMF ¶ 22. Rugg assigned Brogan and defendant Flack as co-investigators for the complaint. Rugg Decl. ¶¶ 38-39. Brogan was Colgate's Assistant Director for Investigations in the Campus Safety Department, and previously worked as a detective in the Abused Persons Unit within the Onondoga County Sheriffs Department. Dkt. No. 67-6 ("Brogan Declaration") ¶¶ 1-3. She interviewed Jane Doe 2 regarding her complaint on November 7. Id. ¶ 15. Brogan interviewed Jane Does 1 and 3 on December 2 and 3, 2014, as witnesses for Jane Doe 2's complaint. Id. ¶¶ 18-19. Jane Does 1 and 3 each admitted that they authored their respective complaints, and were interviewed about their complaints after answering questions about Jane Doe 2. Id.

         b. Investigators' Meetings with Plaintiff

         Brogan and Flack interviewed Plaintiff regarding the three incidents on December 12, 2014. SMF ¶ 37. Regarding Jane Doe 1, Brogan wrote that Plaintiff first claimed to have no memory of anything involving her in October 2011, and that he never had sexual contact with her. Taylor Ex. N. at 30. After further questioning, Plaintiff recalled attending a party with Jane Doe 1 and thinking that she was drunk. Id. at 31. He recalled walking her home and entering her dorm room, where Jane Doe 1 began undressing. Id. He stated that she hugged him while partially dressed and then he left. Id. Regarding Jane Doe 2, Plaintiff had "very little memory" of the evening and only remembered "snapshots" because he drank heavily and smoked marijuana. Id. One snapshot involved Plaintiff being in Jane Doe 1 's room, and the next and final snapshot of the night "was of [Jane Doe 2] lying on top of him and they were kissing" and his pants were unzipped. Id. Plaintiff texted Jane Doe 2 the next morning asking if she was okay. LI at 32. Regarding Jane Doe 3, Brogan wrote that Plaintiff "remembered that he said some sexually aggressive things, " which upset Jane Doe 3. Id. Plaintiff stated that Jane Doe 3 expressed her discomfort with his language when they met in person several days later. Id. Plaintiff denied entering Andrews Hall, stating that he "recalled standing outside of Andrews and watched her walk inside alone." Id.

         After Colgate's winter break, on January 28, 2015, the investigators met once more with Plaintiff, and explained that the allegations against him constituted Sexual Misconduct I and II, which they defined for him. Brogan Decl. ¶ 31. Plaintiff submitted a written statement with his version of events on February 16. Id. ¶ 32. In relevant part, the statement adds to his previous description of events by stating that, during the Jane Doe 1 incident, Plaintiff started "touching [her]" while she was "stripped down to just her underwear." Taylor Ex. N. at 56. The investigators met with Plaintiff again on February 27, and he clarified "that he had touched [Jane Doe 1 's] bare breasts." SMF ¶ 63. In total, Brogan and Flack interviewed sixteen witnesses during their investigation, including every witness that Plaintiff asked them to interview. SMF ¶ 60. The investigation was completed in March 2015. Brogan Decl. ¶ 40.

         6. Hearing Preparation

         a. Decision to Proceed to Hearings

         Rugg and defendant Taylor, who served as "the non-voting EGP Co-Chair, " Taylor Decl. ¶ 4, agreed that hearings were necessary after reviewing the investigators' documents. Rugg Decl. ¶ 54. Taylor and Rugg determined that Jane Doe 1 's allegations constituted Sexual Misconduct I and II. Taylor Decl. ¶ 33. Jane Doe 2's allegations constituted Sexual Misconduct II and Sexual Exploitation. Id. ¶ 34. Jane Doe 3's allegations constituted Sexual Misconduct I and II, as well as Sexual Exploitation. Id. ¶ 35.

         b. Selection of the Hearing Panel and Issuance of Charge Letters

         Taylor decided to organize the three complaints into three separate hearings before the same panel. Taylor Decl. ¶¶ 54-55. The panel would hear each case individually and conclude it before proceeding to the next case. Id. ¶ 55. To find panelists for Plaintiffs adjudication, Rugg screened potential panelists for conflicts of interest, and eventually selected faculty members Jeff Bary, Mary Moran and Nichole Doroshenko, the Biology Department's Head Technician. Rugg Decl. at ¶¶ 43-50. Jane Doe 2 was a Women's Studies major, and Bary's wife was a Women's Studies professor, but he did not know Jane Doe 2's major. Dkt. No. 67-5 ("Bary Declaration") ¶ 7. Moran was a professor in Colgate's Sociology and Anthropology Department and its Africana and Latin American Studies Program. Dkt. No. 67-8 ("Moran Declaration") ¶ 2. She once served on a lunchtime discussion panel with Jane Doe 2, but did not speak directly to Jane Doe 2 "before are after this panel" and did not know her well. Id. ¶ 10.

         On March 24, 2015, Taylor issued the parties "charge letters in each of the three cases, " which informed the parties that the hearings were scheduled for April 7, 2015. Taylor Decl. ¶ 37. The charge letters were sent "to Plaintiff and the applicable complainant in each case." 11 As the non-voting chair of the hearing panel, Taylor reviewed the documents compiled during the investigation of the complaints against Plaintiff, and removed information that she deemed irrelevant or overly prejudicial. Id. ¶ 40-46.

         a Plaintiffs Preparation for the Hearings

         The investigation documents that would be used during the hearing-all the investigation materials that Taylor did not remove during her review-became "available for review on" March 27, 2015. Taylor Decl. ¶ 47. Subject to Taylor's availability in her office, Plaintiff could access the EGP hearing file at any time between then and April 7. Dkt. No. 67-2 ("Doe Deposition") at 214; Dkt. No. 73-29 ("Response Statement of Material Facts") ¶ 97. Plaintiff met with his attorney on March 30. Taylor Decl. ¶ 52; Dkt. No. 67-19 ("Exhibits O-V") at 2-3.[3]Plaintiff had strep throat on March 31. Doe Dep. at 122-23. He first requested to review the files on April 3, and he and his attorney reviewed the files for "[h]ours" later that day. SMF ¶ 98. They reviewed the documents again on April 7, before the hearings. Id. ¶ 99. Plaintiff was permitted to call additional witnesses for the hearings, and to seek more information from previously interviewed witnesses, but he did neither. Doe Dep. at 127-28. He similarly elected not to prepare additional documentation to support his case during the hearings. SMF ¶ 107. Plaintiffs attorney asked Taylor to postpone the hearings to give him and Plaintiff more time to review the hearing materials. Id. ¶ 100. Taylor declined the request because she believed that Plaintiff had an ample opportunity to review the materials. Taylor Decl. ¶ 52.

         7. The Hearings

         The three hearings were held on April 7, 2015. SMF ¶ 102. Plaintiff "did not request questions to be asked of the complainants." Id. ¶ 108. He was permitted to offer information beyond that contained in his written statement, and could have voiced his disagreement with any items in the hearing materials. Id.¶¶ 111-12. Plaintiff also asked questions of Brogan during the hearings "and spoke at the hearing and was not prevented from saying or asking anything." Id. ¶113.

         8. Determining Responsibility and Imposing Sanctions

         The hearings were held consecutively, a separate hearing for each complaint. Bary Decl. ¶ 13. At the close of the final hearing, the panel discussed each case individually, and came to a decision regarding responsibility in each case before moving to the next case. Id. ¶ 15. Regarding Jane Doe 2, the panel found that Plaintiffs credibility was diminished because he could not remember much of the night. Id. ¶ 20; Moran Decl. ¶ 20; Dkt. No. 67-7 ("Doroshenko Declaration") ¶ 22. The panelists also viewed Plaintiffs apology text as an "admission" that he had behaved inappropriately. Bary Decl. ¶ 21; Doroshenko Decl. ¶ 28; Moran Decl. ¶ 22. Regarding Jane Doe 3, the panelists were persuaded by the level of detail in her recounting of the April 2012 incident, and the fact that, shortly after the incident, she told multiple witnesses that Plaintiff had engaged in sexual misconduct. Bary Decl. ¶ 25; Doroshenko Decl. ¶ 37; Moran Decl. ¶ 26.

         Regarding Jane Doe 1, the panelists found Plaintiffs account unpersuasive because his story changed significantly over time. Bary Decl. ¶ 33; Doroshenko Decl. ¶ 42; Moran Decl. ¶ 31. Namely, the panel considered his initial reluctance to admit that he touched Jane Doe 1 to be suspicious. Doroshenko Decl. ¶ 42; Moran Decl. ¶ 31. Moreover, the panelists perceived that Plaintiffs behavior with each complainant amounted to a pattern of behavior-engaging in nonconsensual sexual activity with the Jane Does after walking them home following a night of drinking-and found that Jane Doe 1 's account was more credible because it fit that pattern. Moran Decl. ¶ 34; Bary Decl. ¶ 34. Therefore, the panelists found Plaintiff responsible for each of the violations alleged. Bary Decl. ¶¶ 21, 31, 34-35; Doroshenko Decl. ¶¶ 29-31, 38, 43; Moran Decl. ¶¶ 24, 29, 36. Plaintiff received one decision letter for each hearing, Dkt. No. 67-19 ("Taylor Exhibits S, T, & U") at 13-21, [4] and each letter stated that "[t]he Hearing Panel received conflicting accounts of the events in question, " and that the panel found Plaintiff responsible because it considered the applicable Jane Doe's "account to be more credible." Id.

         Regarding the imposition of sanctions, Taylor provided "comparator information" indicating that "expulsion . . . had been imposed in previous Sexual Misconduct I cases where non-consensual penetration . . . was determined to have occurred, " but did not mandate the imposition of any sanction. Moran Decl. ¶ 37; Bary Decl. ¶ 37; Doroshenko Decl. ¶ 50. The panel imposed the sanctions of expulsion for the Jane Does 1 and 3 incidents and suspension for Jane Doe 2. SMF ¶ 119. Plaintiff appealed the panel's decisions, and Dean of the College Nelson was in charge of deciding the appeals. SMF ¶ 126. Nelson reviewed the hearing materials, listened to an audio recording of each hearing, and read Plaintiffs appeal letter. Id. ¶ 129. Nelson denied the appeals after "finding that none of the grounds for an appeal had been met." Id. ¶ 131.

         9. Alleged Retaliation

         Before Plaintiff was expelled, one of the complainants' friends elbowed him in the kidney at a bar. Doe Dep. at 168. Furthermore, posts on the "anonymous forum" Yik Yak referenced Plaintiff, Id. at 165, and at least one post referred to him as "[a] serial rapist." Dkt. No. 73-11 ("Yik Yak Posts") at 3. That Yik Yak post was forwarded to Taylor by a concerned student. Id. Plaintiff never complained of retaliation to Colgate. SMF ¶ 132.

         B. Procedural History

         Plaintiff filed a Complaint in this Court on August 31, 2015. Compl. The Complaint alleged seven causes of action against Defendants: (1) violations of Title IX; (2) violation of New York HRL; (3) breach of contract; (4) breach of the covenant of good faith and fair dealing; (5) violation of New York General Business Law § 349; (6) liability based on an equitable estoppel theory; and (7) negligence.[5] Id. ¶¶ 189-298. In addition, Plaintiff seeks a declaratory judgment under 28 U.S.C. § 2201. Id. ¶ 298. On June 21, 2017, Defendants moved for summary judgment on all of Plaintiff s causes of action, including his request for a declaratory judgment. Summary Judgment Mot.; Dkt. No. 67-3 ("Memorandum"). Plaintiff opposed the Motion, Resp., and Defendants filed a reply, Reply. Defendants also seek to preclude testimony from Plaintiffs proposed expert witness. Preclusion Mot.

         III. LEGAL STANDARD

         A. Motion to Preclude

         Defendants move to preclude the expert testimony, Dkt. No. 73-13 ("Report") at 1, proffered by Plaintiffs expert, law professor Aya Gruber. Preclusion Mot. They argue that Gruber (1) is unqualified to opine on Title IX investigations or the relationship between trauma and sexual assault reporting; (2) impermissibly provides opinions on legal conclusions and the credibility of witnesses; and (3) fails to support her opinions with reliable data. See Dkt. No. 85-1 ("Preclusion Memorandum").

         Rule 702 of the Federal Rules of Evidence governs the admissibility of expert testimony, codifying rules outlined in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). Rule 702 states:

A witness who is qualified as an expert by knowledge, skill, experience, training or education may testify in the form of an opinion or otherwise if: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine the fact at issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 702. "The party offering the testimony has the burden of establishing its admissibility by a preponderance of the evidence." In re Mirena IUD Prods. Liab. Litig., 169 F.Supp.3d 396, 411 (S.D.N.Y. 2016) (citing Bourjaily v. United States., 483 U.S. 171, 175-76 (1987)). To determine the admissibility of expert testimony, "First, the district court must determine whether an expert is qualified, " a determination that '"may be based on 'a broad range of knowledge, skills, and training.'" Id. at 412 (citing In re Fosamax Prods. Liab. Litig., 645 F.Supp.2d 164, 172 (S.D.N.Y. 2009)). Second, the district court must evaluate whether the proposed testimony will "help the trier of fact." Id. at 413 (citing Fed.R.Evid. 702). Accordingly, expert testimony that "usurp[s] either the role of the trial judge in instructing the jury as to the applicable law or the role of the jury in applying that law to the facts before it" is inadmissible. United States v. Bilzerian, 926 F.2d 1285, 1294 (2d Cir. 1991).

         Finally, the district court must determine whether the expert testimony is reliable. Daubert, 509 U.S. at 593-94. To determine reliability, "the district court should undertake a rigorous examination of the facts on which the expert relies, the method by which the expert draws an opinion from those facts, and how the expert applies the facts and methods to the case at hand." Amorgianos v. Nat'l R.R. Passenger Corp., 303 F.3d 256, 267 (2d Cir. 2002). If the expert's reasoning is flawed, "[t]he judge should only exclude the evidence if the flaw is large enough that the expert lacks 'good grounds' for his or her conclusions." Id. (quoting In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 745 (3d Cir. 1994)). Nevertheless, "[n]othing . . . requires a district court to admit opinion evidence which is connected to existing data only by the ipse dixit of the expert. A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered." Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997); see also Bah v. City of New York, No. 13-CV-6690, 2017 WL 435823, at *9 (S.D.N.Y. Jan. 31, 2017) ("[E]xpert testimony should be excluded if it is speculative or conjectural.") (alteration in original) (quoting Boucher v. U.S. Suzuki Motor Corp., 73 F.3d 18, 21 (2d Cir. 1996)).

         B. Summary Judgment Motion

         A court must grant summary judgment if "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56. "[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The nonmoving party must then "make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id.

         While the nonmoving party must do "more than simply show that there is some metaphysical doubt as to the material facts, " Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986), a court at the summary judgment stage must "review all of the evidence in the record. In doing so, however, the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 150 (2000); see United States ex rel. O'Donnell v. Countrywide Home Loans, Inc., 822 F.3d 650, 653 n.3 (2d Cir. 2016).

         IV. DISCUSSION

         A. Motion to Preclude

         1. Opining on Trauma, Serial Rapists, and Consent

         Gruber makes the following arguments in the section of her expert report devoted to Title IX and gender bias: (1) although most rape victims recover from trauma very quickly or are not traumatized at all, college administrators, influenced by feminist ideology, presume that sexual assault complainants are traumatized, which leads to procedural defects in Title IX hearings; (2) Colgate presumed that the complainants were traumatized in the cases against Plaintiff, which caused bias in the investigation and hearing; (3) administrators possess the erroneous belief that most male rapists are serial rapists; (4) Colgate's administrators and the complainants treated Plaintiffs alleged behavior as sexual assault instead of "unpleasant" but consensual sexual activity because they bought into the "serial rapist trope, " and; (5) the hearing panel may have "mistakenly interpreted non-consensual sex to mean internally unwanted sex." Report at 5-9.

         a. The "Trauma Trope"

         Gruber provides an inadequate factual basis to support her sweeping assertion that administrators presume that all complainants are traumatized. See Fed.R.Evid. 702 (stating that expert testimony "must be based upon sufficient facts or data"). Her Report cites no evidence for these conclusions, and her Declaration cites only her Report and four law journal articles that she authored. Dkt. No. 95-7 ("Gruber Declaration") ¶¶ 9-10. Two of the cited articles, Not Affirmative Consent, Dkt. No. 95-14, and Consent Confusion, Dkt. No. 95-9, contain no supporting information. Another article, Rape Law Revisited, relies on sparse anecdotal evidence and conjecture to support the conclusion that "reform is more about protecting complainants from trauma . . . than truth-seeking." Dkt. No. 95-13 at 286-89. The fourth article, Anti-Rape Culture, asserts that "today's campus factfinders regard questioning a victim's credibility ... as victim-blaming." Dkt. No. 95-13 ("Anti-Rape Culture") at 1046. Gruber provides one example for this proposition, citing a Harvard Law Review Article criticizing Harvard's sexual misconduct training. Li; Trading the Megaphone for the Gavel in Title IX Enforcement, 128 Harv. L. Rev. Forum 103, 110 (2015).

         Gruber also cites the 2011 Dear Colleague Letter ("2011 DCL"), authored by the Department of Education's Office for Civil Rights ("OCR"), that states: "OCR strongly discourages schools from allowing the parties personally to question or cross-examine each other during the hearing. Allowing an alleged perpetrator to question an alleged victim directly may be traumatic or intimidating." Anti-Rape Culture at 1046. During the period relevant to this action, the 2011 DCL set forth OCR's interpretation of Title IX and encouraged colleges and universities to more aggressively respond to sexual assault. Letter from Russlynn Ali, Assistant Sec'y for Civil Rights, U.S. Dep't of Educ. to Title IX Coordinators (Apr. 4, 2011), available at https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf The recommendation Gruber cites has nothing to do with "victim-blaming, " as she asserts. Moreover, it does not assume that all complainants are traumatized, nor does it suggest that the credibility of complainants should not be challenged-as discussed below, many Title IX respondents, including Plaintiff, are permitted to cross-examine complainants by directing questions to the complainant through the hearing panel.

         Most importantly, analyzing the 2011 DCL does not provide insight into the beliefs of administrators incorporating its requirements into their Title IX programs. A "[u]niversity's adoption of positions recommended by the federal government does not in turn suggest that the [u]niversity did so because of gender bias-all it plausibly suggests is that the [u]niversity sought to comply with OCR's recommendations." Doe v. Univ. of Chicago, No. 16-C-8298, 2017 WL 4163960, at *5 (N.D. 111. Sept. 20, 2017); see Mancini v. Rollins Coll., No. 16-CV-2232, 2017 WL 3088102, at *6 (M.D. Fla. July 20, 2017) ("[A]bsent university-specific allegations of community pressure, allegations of a national bias ...


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