#TheyLied Libel Lawsuit Over Ex-Student's Allegations of Rape Can Go Forward,

and so can the professor's Title VII and Title IX discrimination claims against the university.

From Erikson v. Xavier Univ., decided Monday by Judge Matthew McFarland (S.D. Ohio):

Erikson was a tenured Associate Professor of Art for Defendant Xavier University for nearly a decade until his termination in October 2022. This case primarily revolves around the events leading up to Plaintiff's termination; a former student's [Witt's] allegation that Plaintiff had raped her and the investigative and administrative actions that Xavier took in response to her formal complaint.

Plaintiff began speaking with … Witt[] during the latter half of 2019. Although Witt had graduated from Xavier in 2013, she was not a Xavier employee and had no other relationship with Xavier. After communicating over several months and meeting on multiple social occasions, Witt suggested that she spend the night at Plaintiff's house on December 31, 2019. That night, Witt visited Plaintiff at his house and the two had sex. Plaintiff alleges that the sex was consensual.

A little over two years later, on February 5, 2022, Witt contacted Defendant Kelly Phelps—a professor at Xavier who chaired the Department of Art from 2012 through 2019. Witt told Phelps that she believed Plaintiff had raped her. Phelps "urged Witt to report the allegation but warned her that [Plaintiff] is 'white, and male, [and] got privilege on his side."

On February 24, 2022, Plaintiff was notified that Witt had filed a formal complaint with Xavier alleging that Plaintiff had violated Xavier's policy by raping her on December 31, 2019. Plaintiff "vehemently denied" the accusation. Additionally, Plaintiff informed Xavier that any investigation into Witt's formal complaint would breach the terms of Xavier's Harassment Code and Accountability Procedures ("HCAP") for several reasons: "(1) at the time of the incident, Witt was not a student or an employee, nor did she have any other relationship with Xavier; (2) the alleged incident did not occur on Xavier property or during an event associated with the University; (3) Witt was not a 'visitor' to Xavier at the time of the alleged incident; and (4) in any event, the alleged incident occurred outside the HCAP's two-year statute of limitations for filing complaints."

Xavier held an HCAP hearing regarding the rape allegations on July 22, 2022 and July 25, 2022. During the hearing, "the panel embarked on a moral tirade against [Plaintiff] for, as a male, having sexual intercourse without using a condom." The panel allowed witnesses to make vague references to allegations of Plaintiff's conduct beyond the scope of Witt's complaint and permitted hearsay testimony by witnesses without personal knowledge. Moreover, the panel ignored testimony that Witt had consented to the sexual activity. The panel ultimately found Plaintiff responsible for raping Witt and recommended terminating him from Xavier. The panel attributed the rape to an "imbalance of power" between Plaintiff and Witt, which stemmed from the fact that Plaintiff is a male whose position in life and at the University seemingly granted him status and power. This power allowed Plaintiff to overwhelm Witt's ability to resist his actions. Xavier terminated Plaintiff in October 2022.

Plaintiff sued Witt for defamation and Xavier for sex discrimination under Title VII and Title IX, claiming that "Xavier's actions and/or omissions surrounding the investigation and hearing of Witt's false allegations of rape, including numerous procedural irregularities, were attributed to gender bias"; the court concluded that, if plaintiff's allegations were factually correct, they could indeed lead to legal liability for defendants. (As is usual with decisions on a motion to dismiss, the court did not decide whether the allegations were actually correct.) A few excerpts:

Plaintiff alleges that, during his hearing, the panel "embarked on a moral tirade against [Plaintiff] for, as a male, having sexual intercourse without using a condom." Xavier argues that this is insufficient to demonstrate gender bias because "[t]he failure to use a condom is not an inherently gender-based issue." But, Plaintiff has alleged that this "moral tirade" was made against him "as a male." This specific allegation, which must be accepted as true and construed in the light most favorable to Plaintiff, adds to the plausibility of Plaintiff's discrimination claim….

Plaintiff [also] alleges that the hearing panel attributed "the rape to an 'imbalance of power' between Witt and [Plaintiff] stemming from the fact that [Plaintiff] is a male whose position in life and at the University seemingly granted him status and power which allowed him to overwhelm Witt's ability to resist his actions." Xavier contends that such an imbalance of power is "not inherently gender-related" but was relevant to the panel's decision making. But, again, the Court must view this allegation in the light most favorable to Plaintiff. The Court accordingly finds that this specific allegation adds to the plausibility of Plaintiff's discrimination claim….

Plaintiff's allegations of clear procedural irregularities by Xavier further support a plausible inference of sex discrimination. Plaintiff alleges that Xavier's investigation breached the terms of the HCAP policy because "(1) at the time of the alleged incident, Witt was not a student or an employee, nor did she have any other relationship with Xavier; (2) the alleged incident did not occur on Xavier property or during an event associated with the University; (3) Witt was not a 'visitor' to Xavier at the time of the alleged incident; and (4) in any event, the alleged incident occurred outside the HCAP's two-year statute of limitation for filing complaints." Simply put, Plaintiff alleges that the investigation itself was outside the scope of HCAP and thus constituted a procedural irregularity….

The HCAP contains a two-year limitation for filing complaints but provides that "[t]he Affirmative Action Officer may grant a reasonable extension of any time period established in these guidelines, except where otherwise noted." The alleged rape occurred on December 31, 2019, and Plaintiff received notification of Witt's complaint on February 24, 2022. So, Xavier's extension beyond the statute of limitations was approximately two months. While the HCAP recognizes that complaints over the two-year mark may cause difficulty in investigating and adjudicating the claim, "reasonable extensions" are permitted under the procedures. This delay does not, by itself, constitute a clear procedural irregularity but remains relevant.

Turning to the HCAP's scope, the "HCAP applies when an employee … is accused of violating Xavier's harassment policies by a student, employee, contracted employee, or third party (i.e., visitor to campus)." Because the "visitor to campus" phrase is preceded by "i.e.," this suggests that the scope of third parties in this clause is limited to visitors to campus. See i.e., Merriam-Webster, https://www.merriam-webster.com/dictionary/i.e. (defining "i.e." as "that is"); cf. e.g., Merriam-Webster, https://www.merriam-webster.com/dictionary/e.g. (defining "e.g." as "for example"). Courts may look to a phrase following "i.e." as limiting the scope of the preceding term. Witt was not a current student or employee of Xavier, and the alleged rape did not occur on campus or at a university-sponsored event. The HCAP language accordingly supports Plaintiff's allegation—at least at this point of litigation—that the investigation into Witt's complaint was a clear procedural irregularity….

And, as to the defamation claim:

Truth is an absolute defense to defamation…. Witt argues that Plaintiff's defamation claim should be dismissed because Xavier's hearing panel found that Plaintiff was responsible for raping her. But, Witt does not cite any case law for the proposition that a university panel's finding is decisive in this context. Plaintiff alleges that he and Witt "engaged in consensual sex" and disputes Xavier's finding that he raped Witt. At this stage of the litigation, the Court must take the well-pleaded facts in Plaintiff's Complaint as true [and thus may not grant the motion to dismiss on the grounds that Witt's statements were true -EV]….

Witt next argues that Plaintiff's defamation claim should be dismissed because Witt's statements are covered by qualified privilege…. Qualified privilege applies when the publication is "fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned." In order for a publication to enjoy such qualified privilege, five elements must be satisfied: (1) the statement was made in good faith, (2) there was an interest to be upheld, (3) the statement was limited in its scope to this purpose, (4) a proper occasion, and (5) publication made in a proper manner to proper parties only. A plaintiff seeking to overcome qualified privilege must set forth facts to plausibly support that the statement was made with actual malice[,] … defined as "acting with knowledge that the statements are false or acting with reckless disregard as to their truth or falsity." …

Witt stated that she believed Plaintiff had raped her, and Plaintiff denies this by alleging that they had engaged in consensual sex. Witt would have had direct personal knowledge regarding whether her statement was true or not. So, accepting the allegations in the Complaint as true, Plaintiff has sufficiently pled that Witt made the statement with actual malice. Therefore, the Court cannot dismiss Plaintiff's defamation claim against Witt.

Marc D. Mezibov and Susan Lawrence Butler (Mezibov Butler) represent plaintiff.