United States District Court, N.D. New York
MEMORANDUM-DECISION AND ORDER
Lawrence E. Kahn, U.S. District Judge.
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.
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.
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.
Relevant Colgate Policies
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.
Colgate's Equity Grievance Policy
EGP imposes procedural rules to adjudicate alleged violations
of the Sexual Misconduct Policy. 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.
Anti-Sexual Assault Advocacy at Colgate
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.
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.
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
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.
The Complaints Against Plaintiff
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.
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.
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.
Investigators' Meetings with the Complainants
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.
Investigators' Meetings with Plaintiff
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."
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.
Decision to Proceed to Hearings
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.
Selection of the Hearing Panel and Issuance of Charge
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.
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.
Plaintiffs Preparation for the Hearings
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.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.
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.
Determining Responsibility and Imposing Sanctions
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.
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,  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."
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.
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
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. 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.
Motion to Preclude
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").
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
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)).
Summary Judgment Motion
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
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).
Motion to Preclude
Opining on Trauma, Serial Rapists, and Consent
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.
The "Trauma Trope"
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).
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
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.
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 ...