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Sex Discrimination

Sex Discrimination Lawsuit Over Alleged Wrongful Title IX Suspension Against UCLA Can Go Forward

“Particularly given the ultimate findings of Roe’s numerous fabrications, Mr. Zeck’s statement plausibly supports an inference that the Regents prejudged Roe’s allegations (and Doe’s defenses thereto) during its investigation on the basis of their respective genders.”


From Doe v. Regents, decided Tuesday by the Ninth Circuit, in an opinion by Judge Consuelo Callahan, joined by Judge Danielle J. Forrest and District Judge and Carol Bagley Amon:

Based on a former student's bare allegations of misconduct, and before beginning a formal Title IX investigation, the University of California, Los Angeles (the "University" or "UCLA") issued an immediate interim suspension of John Doe, a Chinese national graduate student just months away from completing his Ph.D. in chemistry/biochemistry. Over five months later, the University suspended Doe for two years after finding he violated the University's dating violence policy by placing Jane Roe "in fear of bodily injury," just one of the thirteen charges the University brought against him. As a result, Doe lost his housing, his job as a teaching assistant on campus, his ability to complete his Ph.D., and his student visa….

As we clarified in Schwake v. Arizona Board of Regents (9th Cir. 2020), the relevant inquiry on a motion to dismiss a Title IX claim in this context is whether the alleged facts, if true, raise a plausible inference that the university discriminated against the plaintiff on the basis of sex…. Doe's First Amended Complaint ("FAC") meets this standard….

At all relevant times herein, Doe was a Chinese national graduate student at UCLA on a student visa pursuing his Ph.D. in chemistry/biochemistry. He first met then-UCLA student Jane Roe in a chemistry class during the spring quarter of 2014, and the two began dating that summer. Their long-term romantic relationship continued, and the couple became engaged in December 2016. They planned to marry after Doe was scheduled to graduate with his doctorate in June 2017.

However, the relationship ended abruptly in February 2017, after Doe learned that Roe had been unfaithful to him throughout their relationship. On February 12, Doe sought to break off his engagement with Roe and the two met briefly outside Roe's home. The next morning, by text message, the pair agreed to meet on campus after Doe completed teaching his course and after Roe got off work on February 13, to exchange property that each had in their possession. Sometime thereafter, Doe learned that Roe had withdrawn the entire balance of approximately $8,000 from their joint bank account.

At about 9:45 a.m. on February 13, Roe showed up unannounced to Doe's teaching assistant office on campus, before he was scheduled to teach, to confront him. Roe was not an active student enrolled at UCLA at the time. Roe pounded on the door repeatedly, without announcing herself, until Doe answered. Doe, who was meeting with another graduate student at the time, refused to let Roe into his office. Roe demanded that Doe return her Social Security card which she claimed Doe had in his possession. When Doe asked for his engagement ring back, Roe said she had thrown it into the ocean.

Doe explained that he needed to leave to teach his class and asked Roe to wait until he was finished, but Roe refused to let him leave his office. Roe attempted to block Doe's doorway with her arms stretched out and threatened to call the police to have Doe arrested. Eventually, Doe was able to get around Roe to get to his class. Roe followed him and unsuccessfully tried to prevent him from entering his classroom.

While Doe taught his class, Roe called the University police to report that Doe had pushed her in the upper torso area and grabbed her wrist and forearm. Based on this report, University police arrested Doe for misdemeanor domestic battery after he completed teaching his class.

Two months after the incident, on April 13, Roe lodged a Title IX complaint with the University against Doe, alleging thirteen instances of misconduct, some dating back to the Fall of 2014. Although she was no longer a student at UCLA at the time of the February incident (or at the time she filed her Title IX complaint), she represented to the University that she was. UCLA did not verify Roe's status as a student. Roe also reported as part of her Title IX complaint that she had suffered a rib fracture from her encounter with Doe on February 13. The University ultimately found this to be untrue.

On May 10, 2017, the University's Title IX Office and the Office of Student Conduct issued a joint Notice of Charges to Doe, charging him with violations of policies relating to dating violence, conduct that threatens health or safety, stalking, sexual harassment, terrorizing conduct, and sexual assault. Pending resolution of the investigation of these charges, and without a hearing, the Office of the Dean of Students immediately suspended Doe on an interim basis, banned him from UCLA property, and evicted him from student housing. {Doe appealed the interim suspension, and following a special hearing held on May 22, 2017, the University modified the interim suspension to allow Doe to participate in certain activities on campus.}…

On February 13, 2018, Doe filed a petition for writ of mandamus against the Regents in Los Angeles Superior Court, in which he challenged the disciplinary proceedings and decision rendered by the University. On April 3, 2018, Judge Chalfant granted Doe's motion to stay the decision and sanction, finding in relevant part that the evidence did not support the University's findings. Not long thereafter, on May 22, 2018, the Regents filed a Confession of Judgment stating that the Regents believed that Doe's petition should be granted. The court therefore entered judgment in Doe's favor, the Regents' decision and sanction were vacated and set aside, and the matter was remanded for the Regents to reconsider its action.

But this relief came too late, and Doe lost his student visa status.

The court allowed Doe's sex discrimination against UCLA to go forward:

Doe's [Complaint] divides his relevant allegations into three categories: (1) allegations of external pressures, (2) allegations of an internal pattern and practice of bias, and (3) allegations of specific instances of bias in his case. We consider each of these categories of allegations in turn. We conclude that these allegations, when combined, raise a plausible inference of discrimination on the basis of sex sufficient to withstand dismissal at this stage.

In the interests of space, I'll skip items 1 and 2 (though you can read them in the opinion), and focus on item 3:

The above allegations taken together sufficiently allege background indicia of sex discrimination. However, to survive a motion to dismiss, Doe "must combine [those allegations] with facts particular to his case." We hold that Doe has sufficiently done so.

First, the [Complaint] alleges that Jason Zeck, UCLA's Respondent Coordinator, advised Doe in July 2017, during the pending Title IX investigation, that "no female has ever fabricated allegations against an ex-boyfriend in a Title IX setting." The Regents' position that Mr. Zeck's alleged statement cannot possibly be true because Doe was only found responsible for one of the thirteen alleged incidents of misconduct brought against him by Roe is simply untenable. {An alternative explanation might be that, when confronted by a claim that lacked merit, the University rushed to judgment in issuing the two-year interim suspension and then sought out a way to find the accused responsible for something in order to justify its earlier actions.}

Instead, as we must accept this well-pleaded allegation as true, Mr. Zeck's statement suggests that UCLA's Title IX officials held biased assumptions against male respondents during the course of Doe's disciplinary proceeding. Particularly given the ultimate findings of Roe's numerous fabrications, Mr. Zeck's statement plausibly supports an inference that the Regents prejudged Roe's allegations (and Doe's defenses thereto) during its investigation on the basis of their respective genders.

Contrary to the Regents' argument, "statements by 'pertinent university officials,' not just decisionmakers, can support an inference of gender bias." Mr. Zeck's comments are relevant because he served as the "Respondent Coordinator" throughout the Title IX investigation. So while not a decisionmaker, Mr. Zeck was familiar with UCLA's Title IX process and the facts underlying Doe's case. It is therefore reasonable to infer that Mr. Zeck's statement reflects the broader gender assumptions within UCLA's Title IX office during its investigation of Doe.

Second, the [Complaint] alleges that Associate Dean Rush, the ultimate decisionmaker here, advised Doe that if she were in his shoes, she would have invited Roe into her office during the February 2017 incident. Associate Dean Rush's comment suggests that she did not view Roe as an aggressor, and at the very least raises the question of whether, if the gender roles were reversed, Associate Dean Rush would have made the same recommendation to a female approached by her angry, male ex-fiancé when he showed up unannounced to confront her at her place of employment.

The [Complaint] further alleges several additional facts which, if assumed to be true, demonstrate irregularities in Doe's proceedings that, while not dispositive on their own, support an inference of gender bias.

For example, the [Complaint] alleges that the University demonstrated its disparate treatment of Doe as a male during its investigation by failing to investigate his claim that Roe was not a student at the time of the incident and not discrediting Roe when it became apparent that Roe had misrepresented her status as a student and falsely stated that she fractured a rib on February 13. {Roe's status as a non-student at the time of the incident would not preclude the University from proceeding with investigating her complaint under Title IX because her complaint also included allegations of misconduct dating back to 2014, when she was a student at UCLA.} The [Complaint] also alleges other irregularities in the investigation including the fact that Ms. Shakoori made findings of violations of policy not included in the Joint Notice or Amended Joint Notice of Charges.

The [Complaint] enumerates several other allegations of irregular proceedings during the appeal hearing itself, including that (1) the burden was placed on Doe, not the University; (2) Doe was not permitted to speak at the appeal hearing; (3) fact witness testimony supporting Doe's account of the events was discounted, while witness testimony supporting Roe's account was accepted without the need for an independent interview by the appeal panel; (4) Associate Dean Rush evidenced gender bias when she falsely stated that the two-year suspension was required by SVSH Policy for any type of dating violence; and (5) the appeal panel only found that Roe was in fear of "bodily injury," not "serious bodily injury" as required by the policy. Additionally, the [Complaint] referenced the state court's ruling on the motion for stay in the writ proceeding, wherein the court found that the evidence did not support the Regents' findings.

Although the Regents contends that these allegations of procedural irregularities do not suggest that gender was the reason for the supposed errors, this Circuit, as well as the Seventh and Sixth Circuits, have found similar irregularities support an inference of gender bias, particularly when considered in combination with allegations of other specific instances of bias and background indicia of sex discrimination.

The fact that the Regents ultimately found Doe not responsible for twelve of the thirteen allegations made against him does not make the allegations of irregularities in the proceedings any less relevant to our inquiry. Rather, at some point an accumulation of procedural irregularities all disfavoring a male respondent begins to look like a biased proceeding despite the Regents' protests otherwise.

Taken together, Doe's allegations of external pressures and an internal pattern and practice of bias, along with allegations concerning his particular disciplinary case, give rise to a plausible inference that the University discriminated against Doe on the basis of sex. The fact that sex discrimination is "a plausible explanation" for the University's handling of the disciplinary case against Doe is sufficient for his Title IX claim to survive a motion to dismiss. While Doe "may face problems of proof, and the factfinder might not buy the inferences that he's selling," his Title IX claim makes it past the pleading stage.