John Doe v. St Josephs University

                                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT


                                Nos. 19-2158 and 19-2260


                                        JOHN DOE,
                                               Appellant in No. 19-2158

                                             v.

                        ST. JOSEPH’S UNIVERSITY; JANE ROE

                                  St. Joseph’s University,
                                                 Appellant in No. 19-2260


                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                                  (No. 2-18-cv-02044)
                         District Judge: Hon. Paul S. Diamond


                    Submitted pursuant to Third Circuit L.A.R. 34.1(a)
                                    January 24, 2020

                 Before: AMBRO, MATEY, and ROTH, Circuit Judges.

                             (Opinion filed: October 27, 2020)


                                         OPINION




       
        This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does
not constitute binding precedent.
MATEY, Circuit Judge.

       After St. Joseph’s University (SJU) found John Doe responsible for sexual assault,

Doe sued, arguing that the investigation violated his rights under Title IX. The District

Court granted summary judgment for SJU, prompting this appeal. Because Doe has not

presented evidence of bias “on the basis of sex,” and because the additional discovery he

seeks is protected by attorney-client privilege, we will affirm.

                                     I. BACKGROUND

       In February 2018, Doe and Jane Roe—both SJU students—had a sexual encounter

in Doe’s dorm. A few days later, Roe told SJU’s Title IX Coordinator, Dr. Mary-Elaine

Perry, that Doe squeezed her neck forcefully during their time together without her consent.

In response, the school appointed an outside attorney to investigate.

       After interviewing Doe and Roe, the investigator found that Doe “put his hand

around [Roe’s] throat and squeezed her neck area” without consent during the incident,

which “left bruises.” (App. at 1986–87.) The investigator therefore concluded that Doe was

“responsible” for sexual assault, as that term was defined in the school’s Sexual

Misconduct Policy. (App. at 1987–88.) As a result, SJU placed Doe on disciplinary

probation.

       Doe then sued SJU, asserting that the proceedings against him were infected with

sex bias, in violation of Title IX. After discovery, the District Court held that there was




                                              2
insufficient evidence for Doe to take this claim to the jury and granted summary judgment

for SJU.1 This appeal followed.2

                                      II. DISCUSSION

A.     Title IX Claims

       “Title IX bars the imposition of university discipline where gender is a motivating

factor in the decision to discipline.” Yusuf v. Vassar Coll., 

35 F.3d 709

, 715 (2d Cir. 1994).

Doe argues that SJU’s investigation and punishment violated this statute, and he advances

his claim under both a “selective enforcement” theory and an “erroneous outcome” theory.

We address each in turn.

       1.     Selective Enforcement

       A selective-enforcement claim asserts that, “regardless of the student’s guilt or

innocence, the severity of the penalty and/or the decision to initiate the proceedings was

affected by the student’s gender.”

Id. To prevail under

this theory, Doe must identify a

similarly situated female student treated less harshly. See Klocke v. Univ. of Tex. at

Arlington, 

938 F.3d 204

, 213 (5th Cir. 2019); cf. Doe v. Univ. of the Scis., 

961 F.3d 203

,

210 n.4 (3d Cir. 2020) (female comparator and plaintiff both allegedly engaged in sexual




       1
         Doe’s complaint also contained several state-law claims against SJU and Roe.
After granting summary judgment on the Title IX claim, the District Court declined to
exercise supplemental jurisdiction over the state-law claims and dismissed them without
prejudice. The District Court also denied SJU’s counterclaim for attorneys’ fees. Neither
decision is challenged in this appeal.
       2
         The District Court has jurisdiction under 28 U.S.C. § 1331. We have jurisdiction
under 28 U.S.C. § 1291. We exercise plenary review over the District Court’s grant of
summary judgment. Williams v. Sch. Dist. of Bethlehem, 

998 F.2d 168

, 170 (3d Cir. 1993).
                                              3
activity without affirmative consent). To that end, Doe points to two SJU investigations

where women were found not responsible for violating school policy.

          In the first case, a female student was investigated after requiring other female

students to touch her bare buttocks. SJU’s investigator determined that, in part because the

touching occurred in the context of a “team-bonding” incident, it was “not indecent,” “not

sexual contact,” “not touching in a sexual manner,” and therefore not in violation of school

policy. (App. at 1096–97.) In the second case, SJU received an anonymous report that a

female staff member kissed a male student on the lips at an end-of-year luncheon. During

the investigation, the student stated that he “was not uncomfortable,” and that the kiss was

“a non-event,” “non-sexual,” and “not . . . unwelcomed.” (App. at 1104.) Based on these

and other facts, SJU’s investigator found that the staff member did not violate school

policy.

          Both cases are distinguishable. Neither involved a private romantic encounter

leading to allegations of nonconsensual physical contact. Neither involved a victim

alleging to have been physically harmed. And neither was initiated by a complaint from

the alleged victim. In sum, a private, initially-consensual encounter that leads to unwanted,

injurious sexual contact is insufficiently similar to a group hazing event or a public kiss.

For that reason, the District Court did not err in granting summary judgment for SJU on

Doe’s selective enforcement claim.

          2.    Erroneous Outcome

          To prevail on an erroneous-outcome claim, a plaintiff must “cast some articulable

doubt on the accuracy of the outcome of the disciplinary proceeding” and then show

                                              4
“particular circumstances suggesting that gender bias was a motivating factor behind the

erroneous finding.” 

Yusuf, 35 F.3d at 715

. Assuming Doe has sufficiently impeached the

accuracy of the proceedings against him, we turn to his assertions of gender bias.

       Doe argues that the investigator was motivated by gender bias, labeling several

aspects of her investigation “cursory.” (Opening Br. at 36.) He notes, for example, that the

investigator interviewed no witnesses other than himself and Roe, failed to ask whether

Roe’s memory of the evening was distorted by drug use, and declined to question Roe

about other potential causes of her bruising. But even if these investigatory choices show

bias, a jury would have no basis to conclude that this bias was gender motivated. See Doe

v. Columbia Univ., 

831 F.3d 46

, 57 (2d Cir. 2016) (noting that allegations of a shoddy

investigation may “support the inference of bias,” but that such allegations “do not

necessarily relate to bias on account of sex”). In other words, Doe at most satisfies only

half of his evidentiary burden.

       Doe also argues that Perry was motivated by gender bias, pointing to statements she

made on a 2018 grant application. But no evidence shows that Perry played any influential

role in the investigation or adjudication. Cf. Columbia 

Univ., 831 F.3d at 58

(inference of

gender bias permitted where allegedly biased individual “had significant influence, perhaps

even determinative influence, over the University’s decision”). At most, Perry documented

Roe’s allegations in a written complaint and transmitted that complaint to the appropriate

school officials. But there is no evidence that Perry either encouraged Roe’s accusations or

that the complaint misstated or exaggerated her claims. So even if we assume Perry’s



                                             5
judgment might suffer from bias, Doe has not offered facts showing that possible bias

impacted SJU’s investigation.

       Finally, Doe argues that SJU’s emphasis on combatting sexual assault reflects the

school’s gender bias. He notes, for example, that a school presentation encouraged students

to believe and support those who claimed to be victims of sexual violence. He also notes

that SJU had a financial incentive, in the form of a federal grant, to encourage students to

report sexual misconduct. And he notes that SJU retained its existing sexual misconduct

policy in the face of new guidance from the United States Department of Education. But

all of these facts are gender neutral. The presentation, for example, contains no language

showing that female accusers are more likely to be telling the truth, or more deserving of

help, than male accusers. The grant doesn’t reward reports against males any more than

reports against females. And the federal guidance does not suggest that any existing

policies discriminated against men. While some courts have properly pointed to internal or

external pressure when evaluating gender bias, those cases all contained indicia of specific

intent to punish male students. See, e.g., Univ. of the 

Scis., 961 F.3d at 210

(gender bias

plausibly alleged where the school, “encouraged by federal officials, ha[d] instituted

solutions to sexual violence against women that abrogate the civil rights of men and treat

men differently than women”); Menaker v. Hofstra Univ., 

935 F.3d 20

, 27 (2d Cir. 2019)

(gender bias plausibly alleged where, among other things, the school “faced internal

criticism for its assertedly inadequate response to male sexual misconduct on campus”

(emphasis added)); Doe v. Purdue Univ., 

928 F.3d 652

, 669 (7th Cir. 2019) (gender bias

plausibly alleged where, among other facts, school-affiliated group shared an article titled

                                             6
“Alcohol isn’t the cause of campus sexual assault. Men are.”); Doe v. Baum, 

903 F.3d 575

,

586 (6th Cir. 2018) (gender bias plausibly alleged where, for example, “news media

consistently highlighted the university’s poor response to female complainants” (emphasis

added)); Doe v. Miami Univ., 

882 F.3d 579

, 594 (6th Cir. 2018) (gender bias plausibly

alleged where school was being sued by a female student for failing to expel her alleged

attacker). As Doe does not point to evidence of similarly slanted conduct by SJU, the

District Court did not commit error in deciding this claim.3

B.     Attorney-Client Privilege

       During discovery, Doe moved to compel the deposition of SJU’s in-house counsel,

Marianne Schimelfenig, about a meeting with school administrators discussing the

Department of Education’s guidance on sexual assault.4 SJU objected on privilege grounds,

and the District Court denied Doe’s request.5

       Doe challenges this ruling on two grounds. First, he argues that, when asserting the

privilege, SJU failed to “describe the nature of the . . . communications . . . not produced

or disclosed . . . in a manner that . . . enable[d him] to assess the claim,” in violation of Fed.

R. Civ. P. 26(b)(5)(A)(ii). In response to Doe’s motion, SJU submitted an affidavit from



       3
         In University of the Sciences, we held that a Title IX plaintiff need not rely on a
pre-identified theory but instead need only show “that a federally-funded college or
university discriminated against [him] on the basis of 

sex.” 961 F.3d at 209

. As the above
analysis shows, Doe has not met this burden.
       4
         Alternatively, Doe sought to question the administrators themselves.
       5
         “We exercise plenary review over a district court’s determination on the legal
issues underlying a claim of attorney-client privilege, and review the facts for clear error.”
Buskirk v. Apollo Metals, 

307 F.3d 160

, 173 (3d Cir. 2002).

                                                7
Schimelfenig stating that “[t]he entirety of the [October 2017] meeting was an

attorney-client meeting for the purpose of providing legal advice” about complying with

the new federal guidance. (App. at 1947.) Doe asserts that more specificity is required,

since Schimelfenig also serves as SJU’s corporate secretary. But Schimelfenig’s affidavit

confirms that she was attending “[i]n [her] capacity as SJU’s General Counsel” and that

“[t]here was no business [discussed at] the meeting.” (App. at 1947.) And none of the

evidence identified by Doe casts doubt on her assertion.

       Second, Doe argues that SJU waived the privilege by allowing another SJU

administrator to testify about the meeting during his deposition. It is true that disclosing

information to a third party may waive any privilege that would otherwise attach.

Westinghouse Elec. Corp. v. Republic of Philippines, 

951 F.2d 1414

, 1424 (3d Cir. 1991).

But such waiver applies “only as to those communications actually disclosed, unless a

partial waiver would be unfair to the party’s adversary.”

Id. at 1426

n.12. Here, the

administrator’s testimony was essentially limited to stating the meeting’s purpose and the

conclusion reached (i.e., that SJU’s then-current policies conformed to the new guidance).

And Doe makes no argument why, given that limited disclosure, it would be unfair to

prevent SJU from keeping the substance of that meeting’s discussion confidential.

       The District Court, then, properly denied Doe’s motion to compel.

                                    III. CONCLUSION

       For these reasons, we will affirm the District Court’s orders.




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