United States District Court, D. Connecticut
RULING ON MOTION FOR SUMMARY JUDGMENT
BOND ARTERTON, U.S.D.J.
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
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.)
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.)
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.)
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
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]
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.
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.)
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.)
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.
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.)
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."
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. ¶¶
February 6, 2017, QU continued the Hearing until February 24,
2017. (Id. ¶ 41.)
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.
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.)
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.
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.)
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.)
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.)
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.)
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.) 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.)
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.)
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.)
Complaints Against Jane Roe and Jane Roe 2 for Violation of
No. Contact Orders
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.)
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.)
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.)
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.)
Formal Complaint Against Roe and Roe 2
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.)
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.
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.
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
• 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
• 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
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).
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.)
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.)
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.)
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)).
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).
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.
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)).
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.
Title IX Claims
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. § 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 ...