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Doe v. Quinnipiac University

United States District Court, D. Connecticut

July 10, 2019

JOHN DOE, Plaintiff,



         In this action brought under Title IX of the Education Amendments of 1972, 20U.S.C. §§ 1681, et seq. ("Title IX"), and state common law, Plaintiff John Doe alleges that Defendants Quinnipiac University, Terri Johnson, Seann Kalagher, and Vincent Contrucci treated him unfairly as a male respondent in a disciplinary proceeding and as a complainant in a related proceeding, in contravention of both Title IX and QU's own internal policies and procedures. Defendants move for summary judgment on all claims asserted by Plaintiff. For the reasons set forth below, the Motion is granted in part and denied in part.

         I. Background and Summary Judgment Record

The Plaintiff, John Doe, was a male undergraduate student at Quinnipiac University from Fall 2014 until his graduation in May 2017. (Parties' L.R. Stmts. ¶ 1.) Defendant Quinnipiac University ("QU"), a private university located in Hamden, Connecticut, is a beneficiary of federal funds within the meaning of Title IX. (Id. f 2.) Defendant Terri Johnson was QU's Associate VP for Operations and University Title IX Coordinator. (Pl.'s Ex. 14 at 2.) Defendant Seann Kalagher was employed by QU as the Deputy Title IX Coordinator. (Pl.'s Ex. 3 at 74.) Defendant Vincent Contrucci was QU's Director, Office of Community Service. (Parties' L.R. Stmts. ¶ 5.) The 2015-2016 QU Title IX policy is applicable to Doe's claims. (Parties' L.R. Stmts. ¶ 6.)

         Plaintiff was involved in a relationship with "Jane Roe 2" from May 2014 through January 2015. (Parties' L.R. Stmts. ¶ 10.) She graduated in May 2015 and has since resided in Boston. (Parties' L.R. Stmts. ¶ 11.) Plaintiff was in a relationship with "Jane Roe" from January 2015 through June 2016. (Parties' L.R. Stmts. ¶ 12.) According to the Title IX Investigation Report, ([Doc. #11]), on June 28, 2016 Jane Roe reported to the University that she had a verbal argument with her boyfriend (Plaintiff) and that Plaintiff ended their relationship. (Id. at 3.) "She reported that she was accidentally struck while [Plaintiff] was attempting to grab her purse to throw her out of his apartment." (Id.) Roe "related that their relationship had been 'rocky' with [Plaintiff] swinging between periods of affection and care to highly aggressive behavior and verbal abuse." (Id.) She "reported that [he] had been physically violent with her in December." (Id.) She "also indicated that [his] previous girlfriend, [Jane Roe 2], had also suffered verbal abuse from [him] and that [Roe 2] had attempted to warn [Roe]." (Id.)

         The Quinnipiac University investigators Audrey Heins and Defendant Vincent Contrucci ("investigators") interviewed Jane Roe on July 12, 2016 and July 28, 2016 and met with her for findings meetings on October 14, 2016 and October 19, 2016. (Parties' L.R. Stmts. ¶ 14.) They interviewed Jane Roe 2 on July 18, 2016 and met with her for findings meetings on October 14, 2016 and October 19, 2016. (Parties' L.R. Stmts. ¶ 15.) Jane Roe 2 never filed a formal complaint but after QU investigators interviewed her, QU opened an administrative complaint on her behalf against Plaintiff. (Parties' L.R. Stmts. ¶ 16.)

         On August 22, 2016, the investigators notified John Doe via email that they were investigating a Title IX complaint and requested to meet with him to review the process, ask him questions and answer his questions. (Id. ¶ 17.) He was also informed that he could bring another person with him to the meeting who was not involved in the investigation. (Id.) Also attached to the meeting request was a "no contact" order, which directed him not to contact Jane Roe, Jane Roe 2 and another student, A.S. (Id.) Roe, Roe 2, and A.S. were similarly given "no contact" orders directing them not to contact Plaintiff. (Id.)

         The investigators met with Plaintiff on August 23, August 26, August 31, September 28, October 25, and November 1. (Title IX Investigation Report at 1.) The first four meetings were interviews; the last two were findings meetings. (Id. at 73-74.) Between July 12, 2016 and October 5, 2016, the investigators interviewed twenty-one individuals-Roe, Roe 2, Plaintiff, and eighteen witnesses. (Parties' L.R. Stmts. ¶ 19; Title IX Investigation Report [Doc. # 11] at 1-2.) The investigators listened to Plaintiffs father, who was present at some of Plaintiff s interviews, but did not include his statements in the final report. (Id. ¶ 20.) John Doe's mother provided information to the investigators about the nature of John Doe and Jane Roe's relationship, and it was included in the report. (Id. ¶ 21.) The investigators interviewed Jane Roe's mother, (id. ¶ 22), and she told them that she had pictures of her daughter's neck after Plaintiff allegedly grabbed her daughter by the neck, (Ex. E to Mot. Summ. J. (Contrucci Dep.) [Doc. # 81-7] at 308:10-23).

         John Doe informed investigators that Jane Roe's friends had been contacting him indirectly through his friends and harassing him about the ongoing investigation. (Parties' L.R. Stmts. ¶ 23.) He believed that it was a breach of confidentiality surrounding the investigation and the no contact order issued to Jane Roe on August 19, 2016. (Id.)

         Doe contends that as "part of his defense to the charge of Intimate Partner Violence ("IPV"), Doe provided information in his three interviews ... to show that Roe and Roe 2 were not afraid of or intimidated or controlled by Doe" and that "[t]hat information included possible T9 violations by" both women. (Pl.'s L.R. Stmt. ¶ 25.) Contrucci testified that QU did not open an investigation or an administrative complaint against Roe and Roe 2 because "[w]e looked into it, but we could not find any instance where we were able to corroborate whether or not that had actually happened." (Contrucci Dep. at 534:23-535:3.) At the end of October 2016, the investigators gave Doe a copy of their investigation report and recommendations, and QU later gave Plaintiff a final report in January 2017. (Parties' L.R. Stmts. ¶ 26.)

         The investigators "found that John Doe may have violated the Title IX policy and student code of conduct and may be responsible for five charges, including Intimate Partner Violence, Assault, Breach of Peace, Disturbing the Peace and Property Damage and recommended that he be suspended for one year, if he accepted their findings." (Parties' L.R. Stmts. ¶ 27.) John Doe was given the standard three days to make a decision and inform the investigators whether or not he was accepting responsibility. (Id. ¶ 28.) On November 1, 2016, John Doe met with the investigators with his attorney present as his adviser. (Id. ¶ 29.) During this meeting, John Doe informed the investigators that he has disabilities, including ADHD, that affected his ability to process information. (Id.)

         At his deposition, John Doe testified in substance that Jane Roe was treated more favorably than he during the investigation because Roe's witnesses were interviewed before he was and because Roe had more time to prepare everything. (Id. ¶ 30.) The investigators interviewed twelve of the witnesses before interviewing Plaintiff. He conceded that he was given multiple opportunities to speak with the investigators and when he asked for additional time to review the investigation report and submit his response, extra time was provided to him. (Id. f 31.) On November 1, 2016, John Doe and his adviser contacted Matthew Cooper in the Office of Student Accessibility seeking these accommodations, who approved an extension for John Doe to November 11, 2016 to decide if he was accepting responsibility. (Id. ¶ 32.) On November 9, 2016, John Doe requested another extension until November 12, 2016, which was denied. (Id. ¶ 33.) On November 11, 2016, John Doe accepted responsibility for Property Damage, i.e. breaking a glass door. (Id. 5 34.) He did not accept responsibility for the other four charges. (Id.)

         On November 16, 2016, Matthew Cooper recommended that the Title IX Grievance Committee Hearing ("Hearing") be scheduled no earlier than February 1, 2017. (Id. ¶ 35.) On January 13, 2017, Mr. Kalagher scheduled the Hearing date for January 23, 2017. (Id. ¶ 36.) On January 20, 2017, John Doe submitted a 20-page response to the investigation report. (Id. ¶ 37.) On January 24, 2017, Mr. Kalagher re-scheduled the hearing for February 7, 2017 and informed John Doe that the investigator, Mr. Contrucci reviewed his Response and that the investigation report would not be amended, although on January 27, 2017, Mr. Kalagher provided John Doe with a revised investigation report. (Id. J¶ 38-39.) At this time, the other investigator, Ms. Heins, was no longer employed at QU. (Id. ¶ 38.)

         On February 1, 2017, Plaintiffs counsel wrote Terri Johnson, contending that the manner in which the school had handled the investigation was "extremely problematic and unfair" and in violation of various laws, asserting that "Mr. Kalagher has a history of treating [Doe] unfairly and should not be involved in this investigation[, ]" and seeking an investigation of the investigation itself. (Pl.'s Ex. 56 at 1, 11.) According to Plaintiff, "Kalagher handled a case of a QU student who assaulted [Doe]" and that "[d]ue to Mr. Kalagher's lenient discipline" in not removing the student from campus, the student assaulted Doe for a second time. (Id.) Doe asserted that his "parents interacted with Mr. Kalagher and believe he was not supportive of [Doe] and was unprofessional in their interactions with them." (Id.)

         Doe also claimed conflict with Megan Buda, a committee member who reported to Kalagher. Kalagher found no basis for conflict with her or himself. (Parties' L.R. Stmts. ¶¶ 42-43.)

         On February 6, 2017, QU continued the Hearing until February 24, 2017. (Id. ¶ 41.)

         On February 24, 2017, Mr. Kalagher provided John Doe with information for the Hearing. (Id. ¶ 46.) Doe renewed his request that Mr. Kalagher and Ms. Buda, Director of Student Conduct and the Hearing Committee Chair, be recused from the Hearing based on alleged conflicts, which Johnson denied. (Id. ¶¶ 46, 49.) He further requested that the documents regarding his disabilities be given to the Hearing members, but not the complainants. (Id.) Also, he requested that his claims that Jane Roe violated the no contact order and confidentiality be brought to the Hearing members' attention, as evidence of her lack of credibility and motive. (Id.)

         On February 27, 2017, Ms. Johnson responded that she reviewed the underlying investigation and found that it was not biased or unfair and that "the university will not be opening an investigation into the ma[nn]er in which this Title IX investigation has been handled nor will there be another investigation performed as you requested." (Id. ¶ 47.) She also responded that the "Deputy Title IX Coordinator appropriately addressed the various issue[s] raised in regard to both your client and the Complainants." (Id.) The hearing was then rescheduled to March 3, 2017. (Id. ¶ 45.)

         That same day, John Doe requested that his response and exhibits be considered a formal complaint against Jane Roe and Jane Roe 2, which was accepted the next day. (Id. ¶¶ 48, 50.) On March 1, 2017, Doe met with Mr. Cooper and obtained his recommendation for accommodations. (Id. ¶ 51.) On March 2, 2017, the day before the Hearing was to proceed, Doe filed the federal Complaint commencing this case, ([Doc. # 1]), along with a motion for TRO and motion for preliminary injunction, ([Doc. ## 2, 3]). The Hearing was stayed pending oral argument on March 8, 2017 and ruling on the preliminary injunction motion. (Id.)

         Plaintiffs motion for preliminary injunction was denied on March 31, 2017. ([Doc. # 26].) On April 5, 2017, Mr. Kalagher informed John Doe that the Hearing was rescheduled for April 21, 2017. (Id. ¶ 54.) On April 8, 2017 and April 19, 2017, John Doe again renewed his requests that Mr. Kalagher and Ms. Buda be recused from the Hearing. (Id. ¶ 55.) On April 18, 2017 and April 20, 2017, Ms. Johnson again denied these requests. (Id. J 56.) On April 19, 2017, Mr. Kalagher informed Doe of the accommodations that would be provided to him at the Hearing: (a) to aid in his processing the information, all questions pertaining to a specific event and date would be kept together; (b) he would be allowed time (several minutes) to process questions and regroup, with assistance if necessary, in order to recall the context of the question at hand; (c) because of his difficulty sustaining attention and focus and the ease with which he tires cognitively, he would be given frequent breaks in the questioning (every 15-20 minutes), during which time he could "clear his head" and confer with his adviser. (Id. ¶ 57.)

         Prior to the Hearing, the Committee was provided the investigation report and John Doe's Response. (Id. ¶ 59.) The Hearing was held for seven hours on Friday, April 21, 2017, with Doe in attendance with his attorney. (Id. ¶ 60.) The Title IX Grievance Committee composition was of mixed gender, as it consisted of Ms. Megan Buda, Ms. Courtney McKenna, and Mr. Stefano Fasulo. (Id. f 61.) John Doe pled not responsible on all charges. (Id. ¶ 62.) Investigator Contrucci orally summarized the investigation report and response, reading from a document that he prepared, which was provided to the Committee members and Doe. (Id. ¶ 63.) No. witnesses were called by the Committee. (Id. ¶ 65.) After recess, the Committee read the definitions for each of the charged conduct violations and found John Doe responsible for each charge against each complainant. (Id. f 67.) John Doe and Jane Roe each read their impact statements. (Id. ¶ 68.)

         The Hearing Committee then announced the sanctions: that the no contact order would remain in effect; that Doe would be given a deferred suspension through graduation during which time any violation of policy would result in immediate suspension; that he was suspended from University-owned property without prior permission, except to attend classes; that he was prohibited from attending University sponsored events, including senior week, which restriction could be reviewed by the Title IX Coordinator after the 2017-2018 academic year; and that he would be required to adhere to the recommendations of the Title IX Coordinator regarding commencement, including his participation in the School of Business Graduation. (Id. ¶ 70.) On Monday, April 24, 2017, Mr. Kalagher emailed the decision letter to him. (Id. ¶ 71.)

         On April 27, 2017, Ms. Johnson informed Doe that he could not walk at the graduate ceremony for the School of Business but could walk at the earlier graduation for the College of Arts and Sciences. (Id. ¶ 109.) Doe was also prohibited from attending any social events following the graduation. The restrictions were designed to prevent proximity between Doe and Jane Roe, as Roe was also graduating from the School of Business. (Id. f 110.) Doe's request for reconsideration was denied by Ms. Johnson on May 1, 2017. (Id. ¶ 111.)

         John Doe requested permission to be on campus during the last weeks of classes and through graduation and sought permission to accept a QU professor's offer of a summer internship. (Id. ¶¶ 112-113.) Ms. Johnson approved this request on May 11, 2017 for the internship program dates of July 10 through July 21, 2017. (Id., Ex. 105 to Opp'n.)[1] Doe twice requested approval to participate in the internship on additional dates in June or July, which Ms. Johnson denied, as Jane Roe would be using the library and school of business building, where the internship was located. (Id. ¶¶ 114-115.)

         On May 9, 2017, John Doe filed his appeal of the Title IX committee's decision and requested Ms. Johnson's recusal. (Id. ¶ 74.) He appealed on two grounds: (1) additional and/or new relevant information not available at the time of the Hearing; and (2) an error in the process of the abridgment of rights, as outlined in the Title IX policy, which materially impacted the outcome of the Hearing. (Id. ¶ 75.) Doe criticized Contrucci for omitting from the investigation report a copy of the cease and desist letter Doe's lawyer sent to Jane Roe on July 11, 2016, which states that Doe "reports you have been engaging in harassing and threatening conduct, uninvited and unwelcome visits, and repeated cell phone messages" and that "[i]f all contact between you and [Doe] does not cease immediately, we will be applying for a restraining order in the Superior Courl." (Ex. 133 (Cease and Desist Letter) to Opp'n and Ex. 93 (Appeal) to id.) On May 15, 2017, Contrucci acknowledged that he had incorrectly told the committee that Doe failed to corroborate having sent a cease and desist letter. (Appeal at 5; Parties L.R. Stmts. ¶ 76.) Doe had emailed the letter to Contrucci on August 23, 2016. (Id.) While the letter was not included in his final investigation report, it was included as an exhibit to Doe's Response and thus provided to the Committee prior to the Hearing. (Id.)

         On May 26, 2017, Ms. Johnson assigned Monique Drucker, Vice President and Dean of Students and former Title IX Coordinator, as the appeal officer, along with an appeal panel. (Id. ¶¶ 77, 79.) On June 23, 2017, Ms. Johnson sent Ms. Drucker's Appeal Decision Letter to Plaintiff, affirming the Hearing Committee's April 24, 2017 decision, with limited remand to the Hearing Committee for reconsideration based on the procedural misstep that the investigation took more than 60 days. (Id. ¶f 80, 82.) On July 15, 2017, the Hearing Committee determined that "although the investigation took more than 60 days, it would not have materially impacted the outcome, findings and sanctions." (Id. ¶ 83.)

         Plaintiff's Complaints Against Jane Roe and Jane Roe 2 for Violation of No. Contact Orders

         On February 17, 2017, John Doe notified Mr. Kalagher and Ms. Johnson that he was harassed by two friends of Jane Roe. (Id. f 87.) On February 22, 2017, QU Public Safety Officer Karoline Keith interviewed Doe regarding his claims that the no contact order was violated and on March 3, 2017, submitted her report to student affairs, finding no violation. (Id. ¶¶ 88, 89.)

         Thereafter, on March 21, 2017, Ms. Johnson advised Doe by email that his complaints had been reviewed by Cindy Long Porter, who found that the information did not support charges being brought against Jane Roe. (Id. ¶ 90.) On March 27, 2017, Doe reviewed Keith's report in the presence of Ms. Johnson and Ms. Keith. (Id. ¶ 91.) The Hearing Committee was given a copy of the report before the Hearing. (Id. ¶ 92.)

         On April 7, 2017, Doe reported to Ms. Johnson and Ms. Keith that he believed Jane Roe again violated the no contact order when she walked by him at a restaurant and said "I fucking hate you." (Id. ¶ 93.) On April 8, 2017, Ms. Johnson advised Doe that Ms. Keith would follow up on his earlier, Fall 2016 complaint, supra p. 3, about violation of the NCO and breach of confidentiality harassment/retaliation by Jane Roe by means of a friend whose name Doe did not know. (Id. ¶ 85.) Doe never received any substantive response regarding the results of this investigation. (Id.)

         Ms. Keith interviewed Doe on April 12, 2017 about his April 7, 2017 complaints. (Id. ¶ 94; Ex. 55 at Bates 372.) On June 1, 2017, Ms. Johnson informed Doe that Mark DeVilbiss, Director of Residential Life, found that the information did not support charges against Jane Roe. (Id. ¶ 95.)

         Plaintiffs Formal Complaint Against Roe and Roe 2

         With respect to Doe's February 27, 2017 formal complaint, QU informed Doe that he could not bring a complaint against Jane Roe 2 because she was no longer a student. (Id. ¶ 97.) During the month of March 2017, QU's investigation of Doe's complaint against Roe awaited this Court's preliminary injunction ruling on March 31, 2017. (Id. ¶ 100.) On April 8, 2017 and April 18, 2017, Doe inquired as to the status of his complaint against Jane Roe and was advised by Mr. Kalagher that Jane Roe was notified of his complaint and that QU needed to schedule a meeting to speak with Doe further. (Id. ¶¶ 98-99.)

         On April 20, 2017, QU investigators Karoline Keith and Lila Carney requested to interview Doe regarding his complaint against Roe, informing him that his response and attachments to the investigation report (on the complaints against Doe) would be the focus of the meeting. (Id. ¶¶ 101-102.) Doe identified witnesses, including his parents. (Id. ¶ 103.) On May 12, 2017, Ms. Keith interviewed Doe's mother and father by telephone. (Id. ¶ 104.) Doe's mother requested that Doe's aunt be interviewed and also that she and her husband be able to review Keith's notes of their interviews, both of which requests Keith declined. (Id. ¶ 105.)

         On May 19, 2017, the investigators met with Doe to review their findings that by a preponderance of the evidence, Jane Roe was not responsible for sexual harassment, intimate partner violence, or stalking in violation of the University Title IX Policy or Student Code of Conduct Policy. (Id. ¶ 106.)

         In the operative Second Amended Complaint ("SAC"), Plaintiff seeks damages and injunctive relief for alleged violations of Title IX and state common law. Plaintiff asserts that his rights have been violated in twelve separate counts:

• Count One-Title IX Claim for Erroneous Outcome of Disciplinary Hearing (against Defendant QU)
• Count Two-Title IX Claim for Selective Enforcement (against Defendant QU)
• Count Three-Title IX Claim for Deliberate Indifference (against Defendant QU)
• Count Four-Breach of Contract (against Defendant QU)
• Count Five-Breach of the Covenant of Good Faith and Fair Dealing (against Defendant QU)
• Count Six-Tortious Interference with Contract (against Defendant Johnson)
• Count Seven-Tortious Interference with Contract (against Defendant Kalagher)
• Count Eight-Tortious Interference with Contract (against Defendant Contrucci)
• Count Nine-Negligent Infliction of Emotional Distress (against all Defendants)
• Count Ten-Intentional Infliction of Emotional Distress (against all Defendants) » Count Eleven-Negligence (against all Defendants)
• Count Twelve-Reckless and Wanton Misconduct (against all Defendants)

         II. Discussion

         A. Legal Standard

         Summary judgment is appropriate where, "resolv[ing] all ambiguities and draw[ing] all permissible factual inferences in favor of the party against whom summary judgment is sought," Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir. 2008), "the movant shows that 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). "A dispute regarding a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Williams v. Utica Coll. of Syracuse Univ., 453 F.3d 112, 116 (2d Cir. 2006) (quotation marks omitted). "The substantive law governing the case will identify those facts that are material, and '[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment."' Bouboulis v. Transp. Workers Union of Am., 442 F.3d 55, 59 (2d Cir. 2006) (quoting Anderson v. Liberty Lobby, Inc., 411 U.S. 242, 248 (1986)). When considering a motion for summary judgment, the Court may consider depositions, documents, affidavits, interrogatory answers, and other exhibits in the record. Fed.R.Civ.P. 56(c).

         B. Spoliation

         Plaintiff claims that Defendant Kalagher shredded all the notes taken during the hearing in the first investigation and that Karoline Keith destroyed her notes pertaining to the second investigation. (Pl.'s Resp. to Defs.' Mot. Summ. J. [Doc. # 95] at 3.) Plaintiff argues that this spoliation of evidence precludes entry of summary judgment because the "hearing and [the second investigation] are at the core of all Doe's claims against the Defendants" and posits that an attorney like Kalagher and a former state trooper like Keith, both of whom knew about the pending lawsuit and litigation hold, should have known not to destroy evidence. (Id.) Defendants respond, perplexingly, that "[t]he undisputed evidence shows that this [is] not an intentional spoliation case[, ]" and that Plaintiff has failed to make out the elements of a state tort claim for intentional spoliation of evidence, (Defs.' Reply [Doc. # 143] at 1), missing the point that Plaintiff does not assert a stand-alone spoliation cause of action and maintains instead that the spoliation "supports an adverse inference against Defendants sufficient to create a material issue of fact on all Defendants' identified grounds for summary judgment." (Pl.'s Resp. at 3-4.)

         More pertinently, Defendants assert that Plaintiffs evidence does not establish that the notes at issue ever necessarily existed. (Defs.' Reply [Doc. # 143] at 1-2, n. 3.) Kalagher's deposition testimony states that as a matter of general practice, "[a]t the conclusion of the hearing, once the chairperson completes the letter, all of their materials, if they had them, paper materials would be given to me and we would -- I would shred them." (Ex. 3 to Pl.'s Opp'n at 199.) Kalagher also testified that he did this because he "didn't want extra copies of the case materials hanging around." (Id.) Kalagher did not testify whether notes were in fact taken in Plaintiffs hearing, just that when they exist, he shreds them. However, Megan Buda testified that she was "sure someone" had taken notes at the hearing. (Buda Dep., Ex. 6 to Pl.'s Opp'n at 233.)

         Keith's testimony reflects a certainty which is even more problematic for Defendants. She testified that in the course of an investigation she creates handwritten notes, but that she no longer had those notes in this case because although she created them, she destroyed them, as she typically does. (Ex. 7 to Pl.'s Opp'n at 183.)

         "A party seeking an adverse inference based on spoliation must establish '(1) that the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) Lhal Lhe xecoids were destroyed with a culpable state of mind; and (3) that the destroyed evidence was relevant to the party's claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.'" Doe v. Norwalk Cmty. Coll., 248 F.R.D. 372, 376 (D. Conn. 2007) (quoting Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir. 2002)).

         Kalagher and Keith were indisputably under a duty to preserve and "'[o]nce the duty to preserve attaches, any destruction of documents is, at a minimum, negligent.'" Id. (citation omitted). And with respect to state of mind, "a culpable state of mind is established by ordinary negligence." Id. (citing Residential Funding Corp., 306 F.3d at 108).

         Defendants conclusorily assert that because Plaintiff "has been litigating this case for almost a year without" these notes, "[a]t no time during the course of discovery has he been hindered from pursuing his claims." (Reply Supp. Mot. Summ. J. at 2.) But Defendants offer no explanation as to why the apparent destruction of hearing and investigation notes by officials who knew of the litigation hold was not, at a minimum, negligent.

         "To establish the third prong of a spoliation of evidence claim, that the destroyed evidence is 'relevant' to a party's claims, that party 'must adduce sufficient evidence from which a reasonable trier of fact could infer that the destroyed [or unavailable] evidence would have been of the nature alleged by the party affected by its destruction.'" Doe v. Norwalk Cmty. Coll., 248 F.R.D. at 380 (quoting Residential Funding Corp., 306 F.3d at 107). "However, because 'holding the prejudiced party to too strict a standard of proof regarding the likely contents of the destroyed evidence would subvert the prophylactic and punitive purposes of the adverse inference, ... the level of proof that will suffice to support an inference in favor of the innocent party on a particular issue must be less than the amount that would suffice to survive summary judgment on that issue.'" Id. at 380-81 (quoting Kronisch v. United States, 150 F.3d 112, 128 (2d Cir. 1998)).

         The destroyed evidence relates directly to Plaintiffs claims that he was subjected to an unfair investigatory process in both his capacities as a respondent and complainant. With respect to the hearing notes shredded by Kalagher, there is no evidence in the record or argument by Defendants that the substance of those notes was preserved through incorporation into any other document or record. When the hearing took place, Plaintiff had already filed this action, and Plaintiff and QU had already litigated Plaintiffs motion to preliminarily enjoin QU from proceeding with the hearing. Defendants simply offer no justification for the destruction of evidence. Moreover, the documentary record in this case is notably devoid of written materials showing the committee's reasoning process in reaching the findings that it did. From an investigation report and Doe's response, each of which total hundreds of pages in length including exhibits, the committee produced a findings letter of merely two pages. The committee members' contemporaneous notes during the hearing may well have shed light on the committee's deliberative process, credibility assessments of witnesses, and weighing of the evidence, all of which might have allowed Plaintiff to more effectively take deposition and trial testimony from committee members Courtney McKenna, Megan Buda, and Stefano Fasulo on the topic of the committee's decision-making process. Similarly, while Keith testified that she only destroyed the handwritten interview notes after having "typed the interview[, ]" (Keith Dep. at 183), comparing Keith's contemporaneous handwritten notes with her official reports would have allowed a factfinder to determine whether Keith faithfully and neutrally transcribed her handwritten notes or whether she exercised discretion or selectiveness in turning the raw source material into official reports. Under these circumstances, a reasonable factfinder is entitled to determine whether the Title IX committee's hearing notes and Keith's handwritten notes likely contained evidence supporting Plaintiffs claim under Title IX that gender was a motivating factor in the decision to discipline him.

         C. Title IX Claims

         Plaintiff brings three claims under Title IX-erroneous outcome, selective enforcement, and deliberate indifference. Although the elements of these claims differ, they all require Plaintiff to establish that QU discriminated against him on the basis of sex. See 20 U.S.C. ยง 1681(a) ("No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be ...

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