Second Circuit Allows Title IX Claim by Professor Who Alleged Biased Sexual Misconduct Investigation
June 3, 2022 | Tags: REASON
From Vengalattore v. Cornell Univ., decided yesterday by the Second Circuit (Judge Amalya Kearse, joined by Judges José Cabranes and Rosemary Pooler):
Vengalattore is a male of Indian descent. He became a tenure-track Assistant Professor of Physics … in 2009…. One [of his laboratory assistants], a graduate student—called "Jane Roe" in this litigation—worked on a Vengalattore experiment from 2009 until late 2012. She, inter alia, struggled with her lab assignments and often took professional criticism personally; was somewhat unprofessional in her language and conduct; falsely accused others of breaking lab equipment; and objected to "work[ing] long hours" as she stated would be expected of "Indians." Roe withdrew from Vengalattore's project in November 2012. In the Spring of 2013, she told a professor who collaborated in Vengalattore's research "if I have my way, [Dr. Vengalattore] will have a hard time getting tenure."
In May 2014, during the Physics Department's consideration of Vengalattore's request for tenure, Roe sent the tenure review committee a letter alleging that Vengalattore had once angrily thrown a five-pound piece of equipment at her. In September 2014, two days after learning that the committee had recommended that tenure be granted, Roe told Physics Professor Ritchie Patterson that Vengalattore had engaged in sexual misconduct with her. That accusation was relayed to Alan Mittman, Director of Cornell's Office of Workforce Policy and Labor Relations.
Dean Gretchen Ritter, responsible for approval of tenure decisions in the College of Arts and Sciences, was informed of Roe's accusation while she was considering Vengalattore's tenure request. Mittman proceeded to conduct numerous informal interviews of Roe, keeping the Dean informed of Roe's allegations; Vengalattore was not similarly informed. On February 13, 2015, Dean Ritter denied Vengalattore's request for tenure.
One business day later, Mittman, with Sarah Affel, Cornell's Title IX coordinator (the "investigators"), conducted the first interview with Roe that was recorded. In that February 16, 2015 interview, Roe told the investigators that she had been raped by Vengalattore in late 2010, and that she thereafter had a secret consensual sexual relationship with him until December 2011.
On February 27, 2015, Vengalattore, still unaware of Roe's accusations, appealed to the University appeals committee, challenging the denial of his request for tenure. On the next business day, March 2, Mittman summoned him to appear at the Title IX office on March 3 "to 'review [an] alleged romantic relationship with a student under [his] supervision in or around the 2011 calendar year.'"
In the March 3 interview, Vengalattore was informed of Roe's allegation that he and she had had a consensual sexual relationship. Vengalattore denied it. Toward the end of the three-hour interview, he was informed that Roe also accused him of rape. He responded by asking for the assistance of counsel; the investigators told him that was not necessary, and continued with the interview. Vengalattore throughout denied having had any sexual, romantic, or other unprofessional relationship with Roe.
As described in Part I.C.1. below, the Complaint alleged that the investigation was conducted in a manner that was designed to support Roe's accusation. For example, Roe had told the investigators that the sexual relationship began during the final week of the Fall 2010 semester, on a day when Vengalattore had not come to the lab and she went to his house at 7 p.m. to check on him. She said he invited her in and began kissing her; that she initially resisted but then agreed to have sex with him; that she considered this to be rape; that she spent the night with him and went with him to the lab the following morning; and that they then had a secret consensual sexual relationship until December 2011. When Vengalattore asked on what date Roe claimed he had raped her, the investigators refused to answer. Instead they asked Vengalattore to take a blank December 2010 calendar and mark off for them the days he had been in town….
[T]he investigators' eventual written report to the Dean, while recommending that Vengalattore not be found to have raped Roe, stated their conclusion that Roe's allegation of their consensual sexual relationship was supported by a preponderance of the evidence. Without a hearing, Dean Ritter adopted the investigators' report and found that Vengalattore had had an inappropriate sexual relationship with Roe; she also found that he had lied to the investigators. As a result, Dean Ritter imposed a two-week suspension without pay, which Vengalattore served in June 2017 after the denial of tenure had become final. His academic appointment employment at Cornell ended in June 2018.
"Cornell's decision to deny tenure is not at issue in this lawsuit," that matter having been resolved by a 2018 ruling by the New York Supreme Court, Appellate Division, that "the sexual misconduct allegations raised by" Roe had "no[t] … improperly influenced the tenure decision," and "that Cornell had not acted arbitrarily or capriciously during the tenure review process." …
We … hold that Title IX allows a private right of action for a university's intentional gender-based discrimination against a faculty member, and that Vengalattore's Title IX claim should not have been dismissed on the ground that he complained of such discrimination with respect to employment. And as to the issue of whether Vengalattore was subjected to "the imposition of university discipline" because of his gender, we will hold … that his pleading is "sufficient with respect to the element of discriminatory intent, like a complaint under Title VII, if it pleads specific facts that support a minimal plausible inference of such discrimination."…
[W]here a complaint claiming gender discrimination in violation of Title IX or Title VII alleges (a) that the university "fail[ed] to act in accordance with [u]niversity procedures designed to protect accused students," (b) that the university "fail[ed] to seek out potential witnesses [whom the accused] had identified as sources of information favorable to [the accused]," (c) that the defendant university had been criticized for not seriously addressing complaints by female students of sexual misconduct by males, and (d) that the university made findings against the accused male that were "incorrect and contrary to the weight of the evidence," we have found it "plausible that the university was motivated to 'favor the accusing female over the accused male' in order to demonstrate its commitment to protecting female students from male sexual assailants." Given that "procedural irregularity alone" may suggest some form of bias, when there are "clear procedural irregularities in a university's response to allegations of sexual misconduct" we have concluded that "even minimal evidence of sex-based pressure on the university is sufficient" to permit a plausible inference that the "bias [was] on account of sex."
The facts alleged in the Complaint here, taken as true as they must be in assessing a Rule 12(b)(6) motion, easily meet this plausibility standard with respect to Vengalattore's claim under Title IX. To begin with, … the procedures followed by Cornell in dealing with Roe's allegations were fundamentally skewed. First, Policy 6.4, adopted by Cornell in 2012, provided explicit time limits for a student's claim of sexual misconduct by a supervisory faculty member; and when the investigators informed Dean Ritter that Roe's claim was time-barred under Policy 6.4, Dean Ritter instructed them to proceed instead under Cornell's Romance Policy. However, the Faculty Handbook placed alleged violations of the Romance Policy exclusively within the jurisdiction of Cornell's Committee on Professional Status, a faculty committee. Mittman, Director of the Office of Workforce Policy and Labor Relations, and Affel, the Title IX Office coordinator, lacked jurisdiction to investigate Roe's allegations of violation of the Romance Policy.
Second, the Faculty Handbook provided that investigations into alleged violations of the Romance Policy "'must comport with the basic precepts of due process.'" Instead, the investigators summoned Vengalattore to respond to Roe's allegations on one day's notice, without a written statement of the charges or identification of the complainant; they interviewed him for several hours before they revealed that Roe was accusing him not just of a consensual relationship but also of rape; and when Vengalattore then asked to have assistance of counsel in response to hearing the rape accusation for the first time, they denied his request and continued their questioning.
Third, notwithstanding the inapplicability of Policy 6.4, the investigators followed some of its procedures that lessened protections for the person accused. In particular, the investigators, in their Report to Dean Ritter, stated that the preponderance-of-the-evidence standard of proof was to be applied by investigators and the dean, but that neither party has a burden of proof.
Further, … the Complaint alleged that the investigators rejected numerous requests by Vengalattore that they interview certain witnesses or ask certain questions that could have produced information favorable to him. It listed 10 persons whom the investigators did not interview, including Shaffer-Moag who, while the Mittman-Affel investigation was ongoing, gave the University's tenure appeals committee first-hand evidence that Roe had both proclaimed and exhibited bias against men, evidence the committee cited in its decision favorable to Vengalattore. That evidence was not part of the investigators' Report.
In addition, the investigators declined to explore certain statements Roe made in 2010-2011 about her relationships with other men, which cast doubt on her claim to have been in a sexual relationship with Vengalattore. For example, around the end of December 2010 Roe told a friend that after her relationship with fellow student Mohammad Hamidian ended in November 2010, she attempted to reunite with another former boyfriend; and she told the investigators that at about that time she had started to see her high school boyfriend on some weekends. The investigators, despite requests by Vengalattore, did not seek further information about such other relationships.
Similarly, on December 30, 2010, Roe sent an email to Shannon Harvey, a student assistant in Vengalattore's lab from January to August 2010 who had become and remained a close friend of Roe; the investigators interpreted the email as indicating that Roe had just entered into a romantic relationship. But when they interviewed Harvey, they asked no questions relating to that email. The Complaint alleged that instead of asking Harvey whether Roe disclosed with whom she had just become involved—and indeed instead of objectively seeking any information as to the success of Roe's admitted attempts to reunite with past partners—the investigators only "asked Dr. Vengalattore who Roe had sex with, if not him."
Nor did the investigators follow up on evidence they received from Hamidian that more directly cast doubt on Roe's claimed relationship with Vengalattore. Hamidian told them of a conversation he had with Roe in early 2011, noting that it was during the period she claimed to have been in a sexual relationship with Vengalattore. In that conversation, Roe indicated that she had not entered into any new relationship. The investigators neither asked Roe about that conversation nor mentioned this part of their interview of Hamidian in their Report.
The accuracy of the investigators' recommended finding that Vengalattore had a sexual relationship with Roe—and of Dean Ritter's acceptance of that recommendation—is plausibly called into question not only in light of the investigators' rejections of Vengalattore's requests to pursue evidence that could have supported his denial of a sexual relationship with Roe, but also in light of rationales proffered by the investigators for certain conclusions. For example, the Report "determined that the lack of evidence supporting a year-long romantic relationship actually supported Roe's allegations" that such a relationship existed, reasoning that "'[c]ommon sense experience is that secretive relationships carried out by faculty members and students can be carried out without others, including other students and colleagues, becoming aware.'" Although the lack of such evidence could support a claim of secrecy, the lack of evidence that a relationship existed does not support the proposition that it existed. Testimonial evidence on both sides leaves issues of credibility; but the absence of other evidence does not weigh on the existence side of the preponderance scale.
In sum, the Complaint's factual allegations as to Cornell's (a) using parts of a policy that was known to be inapplicable, (b) purporting to use a different policy while disregarding both the entity that had exclusive jurisdiction and that policy's mandate for consistency with due process, (c) avoiding inquiries that might support Vengalattore's denial of a sexual relationship with Roe, and (d) choosing to believe that the very lack of evidence of such a relationship's existence was evidence that it existed, made it plausible that the outcome of the investigation was the result of bias.
The allegation that that bias was based on gender is plausible in light of additional factual allegations described in Part I.D. above, including DoE's Title IX Guidance advising schools to "prevent unwelcome sexual advances by faculty toward students" and warning that noncompliance could result in loss of federal funding; DoE's publication of a list of schools suspected of failing to adopt prompt and equitable sexual misconduct grievance procedures; its addition of Cornell to that list; and Mittman's statement to "Roe that Cornell was working 'very aggressively to address issues of access, prevention and 3 culture change' 'under Title IX.'"
Given this context, the Complaint plausibly alleged that the bias inferable from the procedural irregularities in the processing of Roe's claims against Vengalattore was bias on the basis of gender. We conclude that Vengalattore's Title IX claim was not dismissible for failure to state a claim….
Vengalattore's remaining claim against Cornell, a state-law claim for defamation, was not dismissed for any flaw in the pleading; rather, the district court, having dismissed all of his federal claims, declined as a matter of its discretion to exercise supplemental jurisdiction. Because the dismissal of Vengalattore's claim under Title IX is being vacated, we also vacate the dismissal of his claim for defamation.
Congratulations to Caleb Kruckenberg, Margaret A. Little, and Richard A. Samp with the New Civil Liberties Alliance (Kruckenberg is now at the Pacific legal Foundation), who represented Vengalattore.
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