From Erikson v. Xavier Univ., determined Monday by Choose Matthew McFarland (S.D. Ohio):
Erikson was a tenured Affiliate Professor of Artwork for Defendant Xavier College for practically a decade till his termination in October 2022. This case primarily revolves across the occasions main as much as Plaintiff’s termination; a former pupil’s [Witt’s] allegation that Plaintiff had raped her and the investigative and administrative actions that Xavier took in response to her formal grievance.
Plaintiff started talking with … Witt[] throughout the latter half of 2019. Though Witt had graduated from Xavier in 2013, she was not a Xavier worker and had no different relationship with Xavier. After speaking over a number of months and assembly on a number of social events, Witt urged that she spend the evening at Plaintiff’s home on December 31, 2019. That evening, Witt visited Plaintiff at his home and the 2 had intercourse. Plaintiff alleges that the intercourse was consensual.
A bit over two years later, on February 5, 2022, Witt contacted Defendant Kelly Phelps—a professor at Xavier who chaired the Division of Artwork from 2012 via 2019. Witt instructed Phelps that she believed Plaintiff had raped her. Phelps “urged Witt to report the allegation however warned her that [Plaintiff] is ‘white, and male, [and] bought privilege on his facet.”
On February 24, 2022, Plaintiff was notified that Witt had filed a proper grievance with Xavier alleging that Plaintiff had violated Xavier’s coverage by raping her on December 31, 2019. Plaintiff “vehemently denied” the accusation. Moreover, Plaintiff knowledgeable Xavier that any investigation into Witt’s formal grievance would breach the phrases of Xavier’s Harassment Code and Accountability Procedures (“HCAP”) for a number of causes: “(1) on the time of the incident, Witt was not a pupil or an worker, nor did she have some other relationship with Xavier; (2) the alleged incident didn’t happen on Xavier property or throughout an occasion related to the College; (3) Witt was not a ‘customer’ to Xavier on the time of the alleged incident; and (4) in any occasion, the alleged incident occurred exterior the HCAP’s two-year statute of limitations for submitting complaints.”
Xavier held an HCAP listening to relating to the rape allegations on July 22, 2022 and July 25, 2022. Through the listening to, “the panel launched into an ethical tirade in opposition to [Plaintiff] for, as a male, having sexual activity with out utilizing a condom.” The panel allowed witnesses to make obscure references to allegations of Plaintiff’s conduct past the scope of Witt’s grievance and permitted rumour testimony by witnesses with out private information. Furthermore, the panel ignored testimony that Witt had consented to the sexual exercise. The panel in the end discovered Plaintiff chargeable for raping Witt and really helpful terminating him from Xavier. The panel attributed the rape to an “imbalance of energy” between Plaintiff and Witt, which stemmed from the truth that Plaintiff is a male whose place in life and on the College seemingly granted him standing and energy. This energy allowed Plaintiff to overwhelm Witt’s means to withstand his actions. Xavier terminated Plaintiff in October 2022.
Plaintiff sued Witt for defamation and Xavier for intercourse discrimination underneath Title VII and Title IX, claiming that “Xavier’s actions and/or omissions surrounding the investigation and listening to of Witt’s false allegations of rape, together with quite a few procedural irregularities, have been attributed to gender bias”; the courtroom concluded that, if plaintiff’s allegations have been factually appropriate, they might certainly result in authorized legal responsibility for defendants. (As is common with selections on a movement to dismiss, the courtroom didn’t determine whether or not the allegations have been truly appropriate.) Just a few excerpts:
Plaintiff alleges that, throughout his listening to, the panel “launched into an ethical tirade in opposition to [Plaintiff] for, as a male, having sexual activity with out utilizing a condom.” Xavier argues that that is inadequate to show gender bias as a result of “[t]he failure to make use of a condom isn’t an inherently gender-based problem.” However, Plaintiff has alleged that this “ethical tirade” was made in opposition to him “as a male.” This particular allegation, which should be accepted as true and construed within the mild most favorable to Plaintiff, provides to the plausibility of Plaintiff’s discrimination declare….
Plaintiff [also] alleges that the listening to panel attributed “the rape to an ‘imbalance of energy’ between Witt and [Plaintiff] stemming from the truth that [Plaintiff] is a male whose place in life and on the College seemingly granted him standing and energy which allowed him to overwhelm Witt’s means to withstand his actions.” Xavier contends that such an imbalance of energy is “not inherently gender-related” however was related to the panel’s choice making. However, once more, the Courtroom should view this allegation within the mild most favorable to Plaintiff. The Courtroom accordingly finds that this particular allegation provides to the plausibility of Plaintiff’s discrimination declare….
Plaintiff’s allegations of clear procedural irregularities by Xavier additional assist a believable inference of intercourse discrimination. Plaintiff alleges that Xavier’s investigation breached the phrases of the HCAP coverage as a result of “(1) on the time of the alleged incident, Witt was not a pupil or an worker, nor did she have some other relationship with Xavier; (2) the alleged incident didn’t happen on Xavier property or throughout an occasion related to the College; (3) Witt was not a ‘customer’ to Xavier on the time of the alleged incident; and (4) in any occasion, the alleged incident occurred exterior the HCAP’s two-year statute of limitation for submitting complaints.” Merely put, Plaintiff alleges that the investigation itself was exterior the scope of HCAP and thus constituted a procedural irregularity….
The HCAP incorporates a two-year limitation for submitting complaints however gives that “[t]he Affirmative Motion Officer might grant an affordable extension of any time interval established in these pointers, besides the place in any other case famous.” The alleged rape occurred on December 31, 2019, and Plaintiff obtained notification of Witt’s grievance on February 24, 2022. So, Xavier’s extension past the statute of limitations was roughly two months. Whereas the HCAP acknowledges that complaints over the two-year mark might trigger issue in investigating and adjudicating the declare, “affordable extensions” are permitted underneath the procedures. This delay doesn’t, by itself, represent a transparent procedural irregularity however stays related.
Turning to the HCAP’s scope, the “HCAP applies when an worker … is accused of violating Xavier’s harassment insurance policies by a pupil, worker, contracted worker, or third social gathering (i.e., customer to campus).” As a result of the “customer to campus” phrase is preceded by “i.e.,” this means that the scope of third events on this clause is restricted to guests to campus. See i.e., Merriam-Webster, https://www.merriam-webster.com/dictionary/i.e. (defining “i.e.” as “that’s”); cf. e.g., Merriam-Webster, https://www.merriam-webster.com/dictionary/e.g. (defining “e.g.” as “for instance”). Courts might look to a phrase following “i.e.” as limiting the scope of the previous time period. Witt was not a present pupil or worker of Xavier, and the alleged rape didn’t happen on campus or at a university-sponsored occasion. The HCAP language accordingly helps Plaintiff’s allegation—not less than at this level of litigation—that the investigation into Witt’s grievance was a transparent procedural irregularity….
And, as to the defamation declare:
Reality is an absolute protection to defamation…. Witt argues that Plaintiff’s defamation declare ought to be dismissed as a result of Xavier’s listening to panel discovered that Plaintiff was chargeable for raping her. However, Witt doesn’t cite any case legislation for the proposition {that a} college panel’s discovering is decisive on this context. Plaintiff alleges that he and Witt “engaged in consensual intercourse” and disputes Xavier’s discovering that he raped Witt. At this stage of the litigation, the Courtroom should take the well-pleaded info in Plaintiff’s Grievance as true [and thus may not grant the motion to dismiss on the grounds that Witt’s statements were true -EV]….
Witt subsequent argues that Plaintiff’s defamation declare ought to be dismissed as a result of Witt’s statements are lined by certified privilege…. Certified privilege applies when the publication is “pretty made by an individual within the discharge of some public or non-public obligation, whether or not authorized or ethical, or within the conduct of his personal affairs, in issues the place his curiosity is worried.” To ensure that a publication to take pleasure in such certified privilege, 5 components should be happy: (1) the assertion was made in good religion, (2) there was an curiosity to be upheld, (3) the assertion was restricted in its scope to this function, (4) a correct event, and (5) publication made in a correct method to correct events solely. A plaintiff in search of to beat certified privilege should set forth info to plausibly assist that the assertion was made with precise malice[,] … outlined as “performing with information that the statements are false or performing with reckless disregard as to their fact or falsity.” …
Witt said that she believed Plaintiff had raped her, and Plaintiff denies this by alleging that that they had engaged in consensual intercourse. Witt would have had direct private information relating to whether or not her assertion was true or not. So, accepting the allegations within the Grievance as true, Plaintiff has sufficiently pled that Witt made the assertion with precise malice. Subsequently, the Courtroom can not dismiss Plaintiff’s defamation declare in opposition to Witt.
Marc D. Mezibov and Susan Lawrence Butler (Mezibov Butler) characterize plaintiff.