Case: 3:15-cv-00362-TMR Doc #: 1 Filed: 10/07/15 Page: 1 of 51 PAGEID #: 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION x DYSHAWN PIERRE, : ‘Case No. : Plaintiff, + ‘Thomas M. Rose v. : VERIFIED COMPLAINT UNIVERSITY OF DAYTON, [URY TRIAL DEMANDED Defendant, Plaintiff Dyshawn Pierre (“Pierre”), by his attomeys, Peter R. Ginsberg Law, LLC, Greger Law Office and Carr & Shiverdecker, for his Verified Complaint against University of Dayton (the “University” or “Defendant”), alleges as follows: NATURE OF THE ACTION 1 By this action, Pierre secks equitable relief and damages for, inter alia, the University’s failure to follow its own policies and procedures for investigating and adjudicating student misconduct allegations against Pierre; failure to adhere to fundamental notions of fairness, good faith and impartiality in the University’s investigatory and disciplinary proceedings against Pierre; failure to accommodate Pierre’s learning disability while investigating and adjudicating the allegations against him; and, creation of, and deliberate indifference to, an environment in which male students in Pierre’s position are systematically disadvantaged, thereby depriving Pierre of a fair and impartial hearing and, ultimately, leading to an erroneous outcome, 2. . Pierre is a student-athlete and has been a member of the University’s men’s basketball team since the 2012-13 Season.Case: 3:15-cv-00362-TMR Doc #: 1 Filed: 10/07/15 Page: 2 of 51 PAGEID #: 2 3. In May 2015, a female University of Dayton student (hereinafter referred to as “Acouser”) falsely accused Pierre of “a sexual assault, or a rape,” The University conducted a findamentally unfair investigation and heating and failed to accommodate Pierre's leaming disability, and ultimately reached a wholly irrational, unsubstantiated determination that was inconsistent with the evidence, inconsistent with the original allegations, and inconsistent with fundamental principles of justice. 4, The University’s Title IX investigators, charged with investigating such accusations, failed to follow the University’s policies for disciplinary investigations, conducted an investigation that was fundamentally unfair and feiled to make accommodations for Pierre’s leaming disability and, indeed, penalized him as a result of his leaming disability. The University ignored Pierre’s objections to the unfairness of the investigation, 5. The University Hearing Board (“UHB”), charged with adjudicating the allegations against Pierre, failed to follow the University’s policies for disciplinary hearings, conducted a hearing in Pierre's case (the “Hearing”) that was fundamentally unfair and failed to make accommodations for Pierre’s leaming disability. The University ignored Pierre’s objections to the unfaimess of the Hearing. The Judicial Review Committee (“JRC”), charged with reviewing Pierre’s appeal, failed to recognize or remedy the flaws in the investigation and Heating process. The University rejected Pierre’s arguments and upheld the UHB’s finding. 7, Pierre is entitled to have the UHB’s findings and consequences vacated. Pierre also is entitled to actual and punitive damages for the University’s malicious and injurious actions and omissions.Case: 3:15-cv-00362-TMR Doc #: 1 Filed: 10/07/15 Page: 3 of 51 PAGEID #: 3 JURISDICTION AND VENUE, 8. This Court has jurisdiction over Pierre’s claims pursuant to 28 U.S.C. § 1332(a)(2) because the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between a citizen of Canada and a citizen of Ohio. 9. This Court also has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1367 because the claims either involve questions arising under Title IX of the Education Amendments of 1972, 20 US.C. §§ 1681-88 (“Title IX”), the Americans with Disabilities Act, 42 U.S.C, § 12182, § 504 of the Rehabilitation Act, 29 U.S.C. § 794, or ate state law claims arising out of the same transaction or occurrences giving rise to Pierre’s federal law claims. 10, Dyshawn Pierre is a citizen of Ontario, Canada. 11, The University of Dayton is a private Roman Catholic and Marianist university located in Dayton, Ohio. The University is an Ohio non-profit corporation. 12, This Court has personal jurisdiction over the University pursuant to Ohio Rev. Code Ann, § 2307:382(A)(1)-@). This case arises from the University’s, inter alia, transacting business in Ohio, contracting to supply services in Ohio and causing tortious injury by act and omissions that occurred in Ohio. 13, Venue is proper pursuant to 28 U.S.C. § 1391(b)(1) and (b)(2). BACKGROUND Pierre’s Background 14, Pierre, the son of Fabian and Rosalie Pierre, was bom in Toronto, Ontario and raised in Whitby, Ontario with his brother Jermel. 15. Pierre was a decorated athlete before enrolling at the University of Dayton.Case: 3:15-cv-00362-TMR Doc #: 1 Filed: 10/07/15 Page: 4 of 51 PAGEID #: 4 16, Pierre played for the Canadian national under-17 and under-19 men’s besketball teams. In 2010, as part of the Canadian national under-17 team, Pierre won a bronze medal in the International Basketball Federation (FIBA) Under-i7 World Championship. In 2011, Pierre Jed Canada’s national under-19 team in the FIBA World Championship in scoring and rebounding. 17, In 2011 and 2012, Pier led the Anderson Collegiate Vocational Institute men’s basketball team to back-to-back championships within the Ontario Federation of School Athletic Associations. In 2012, Pierre was named the championship MVP. 18. In May 2012, Pierre signed a national letter of intent to attend the University of Dayton. 19, Pierre was diagnosed with a leaming disability on or about June 11,2012. 20. Pierre has difficulty with reading and verbally articulating his thoughts, among other disabilities 21. The University was aware of Pierre’s leaming disability and provided certain accommodations for it, including tutoring, extra time to complete assignments and tests and the opportunity to record classes and lectures. The Events of April 22-23, 2015 22. Inthe early morning of April 23, 2015, Pieme and Accuser engaged in consensual sexual intercourse. 23. The consensual sexual intercourse occurred after Pierre, Accuser and several of their fiiends spent the evening of April 22 together. After meeting in Accuser’s apartment, they walked to Pieme’s apartment for a drink, then to a local bar and, when the bar closed, to the apartment of another friend.Case: 3:15-cv-00362-TMR Doc #: 1 Filed: 10/07/15 Page: 5 of 51 PAGEID #:5 24, Accuser estimated that she consumed three alcoholic beverages over the course of more than three hours: one in Pierre’s apartment before midnight and two at the bar between midnight and 2:30 a.m, Accuser also estimated that she drank four or five cups of water at their friend’s apartment after 2:30 a.m. Accuser, as she acknowledges, was not impaired. 25. Accuser and Pierre spent time alone in the living room of their friend’s apartment. after returning for the evening. Their friends were in other rooms of the apartment during this time frame. One or two of them intermittently entered the living room, 26. While Accuser and Pierre were alone, Pierre rubbed Accuser’s back with her explicit consent. Accuser likewise rubbed Pierre’s back with Pierre’s explicit consent. When Accuser and Pierre stopped rubbing each other’s backs, they began kissing. 27. Eventually, Accuser and Pierre left their friend’s apartment together, and Accuser accepted Pierre’s invitation to come back to his apartment, 28. Upon entering Pierre’s room, Accuser and Pierre climbed into Pierre’s bed, which sat 53 inches off the floor. ‘The task of climbing up to the bed requires stepping on a chair and Pierre's desk. Accuser climbed up without assistance and lay down, Again, Pierre rubbed Accuser’s back. 29. After a short time, Accuser climbed out of Pierre’s bed to use the bathroom, 30. After Accuser used the bathroom, she passed by Pierre’s roommate, Pierre’s roommate saw Accuser. Aecuser retumed to Pierre’s room, where Pierre was in his bed. Accuser climbed back up to the bed, again without assistance, stepping on the chair and then the desk.Case: 3:15-cv-00362-TMR Doc #: 1 Filed: 10/07/15 Page: 6 of 51 PAGEID #: 6 31. Accuser and Pierre thereafter undressed and engaged in consensual sexual intercourse. At no time did Accuser express, either verbally or otherwise, any reluctance, hesitancy or lack of consent. 32. Following the consensual sexual intercourse, Accuser and Pierre both climbed out of the bed, and Pierre offered Accuser his clothes — a pair of his gym shorts and a tank top ~ to sleep in, Accuser put on Pierre’s clothes and climbed back up to his bed for a third time, again without assistance. Accuser and Pierre lay in the bed talking for a long time, 33, At approximately 5:30 am. Pierre received a call fiom another friend who ‘wanted to see him, and Pierre left his room. Accuser continued to lie in Pierre’s bed for a few minutes but eventually left before Pierre returned, 34, Accuser and Pierre exchanged several friendly text messages between 5:42 a.m. and 2 p.m. on April 23. 35. Over the next few days, Accuser and Pierre had friendly encounters outside the University athletic complex and at the local bar, where Accuser hugged Pierre, 36. During this time period, Accuser's long-time boyfriend, a student at ‘The Ohio State University, upon information and belief, learned of Accuser’s activity with Pierre. The False Allegations Against Pierre 37. Ten days after their consensual sexual encounter, on May 3, 2015, Accuser submitted an online complaint form to the University claiming that she “had been the vietim of a sexual assault, or a rapel.)” 38. The University of Dayton Student Handbook (“Handbook”) instructs vietims of “sexual violence” to “seek immediate assistance[,]” to “seek medical attention[,]” and to “preserve evidence” by reftaining from washing anything, showering or cleaning themselves inCase: 3:15-cv-00362-TMR Doc #: 1 Filed: 10/07/15 Page: 7 of 51 PAGEID #: 7 any way or changing clothes. ‘The Handbook specifically recommends seeking medical attention “by contacting law enforcement or by going to a local hospital.” 39. Accuser ignored this advice in every material manner. 40. Accuser waited five days before seeking a medical examination. 41, Accuser did not report to @ hospital, see a doctor, or see a specially-trained sexual abuse nurse examiner (“SANE”). Rather, after five days had passed, Accuser saw a nurse at the University Health Center. 42, Accuser contends that Pierre “ripped off” the underwear and pants she was ‘weaving on the night of the encounter. Despite claiming that her articles of clothing were torn by Pierre and despite the admonition in the Handbook to preserve and provide the clothing worn during such activity, Accuser never provided those items of clothing to University representatives, including the Title IX investigators, If such torn clothing in fact existed, as Accuser elaimed, such evidence would have corroborated Accuser’s allegations and, equally to the point, if these crucial pieces of evidence did not exist, the absence of such evidence would have undermined Accuser’s allegations. In addition, if there had been an assault in any manner, such clothing may have provided evidence of such activity, as the Handbook makes clear in instructing an alleged victim to preserve such evidence and provide it to the appropriate 43. The Title 1X investigators failed to consider or state in the Title IX Report that Accuser failed and otherwise refused to produce these crucial pieces of objective evidence, 44. ‘The University Health Center’s examination of Accuser revealed a “normal- appearing” vagina and cervix.Case: 3:15-cv-00362-TMR Doc #: 1 Filed: 10/07/15 Page: 8 of 51 PAGEID #: 8 45. The University Health Center’s examination of Accuser revealed absolutely no evidence ofa forced sexual encounter. 46. The Title IX investigators failed to provide in the Title IX Report an analysis or observation of the fact that the forensic evidence, also a crucial piece of objective evidence, like the clothing that Accuser failed to provide, failed to corroborate Accuser’s allegations and, in fact, undermined Accuser’s credibility and provided a crucial piece of objective evidence that Pierre had not committed any of the activities which lay at the heart of Accuser’s accusations. 47. After waiting five days to have a medical examination performed, Accuser waited another five days after the examination before submitting a complaint form to the University. The Police and Prosecutor’s Investigation 48, As a result of Accuser’ accusation, the University of Dayton Police Department conducted a criminal investigation. 49, The University of Dayton Police Department took statements from Pierre, Accuser, Pierre's roommate and one of the female friends who was with them during the evening of April 22-23. 50. The University of Dayton Police Department met with attomeys in the ‘Montgomery County Prosecutor’s Office and presented the case file for a possible felony filing. 51. The Prosecutor’s Office decided not to present the case to the grand jury or otherwise pursue a prosecution. There did not exist sufficient evidence to support Accuser’s accusations.Case: 3:15-cv-00362-TMR Doc #: 1 Filed: 10/07/15 Page: 9 of 51 PAGEID #: 9 The University of Dayton Student Handbook, Policies and Procedures 52, The Handbook sets forth the University’s policies and procedures for investigating and adjudicating allegations of student misconduct, including sexual misconduct. Handbook at 20, 44.) 53. ‘The University also publishes other resources that set forth the University’s policies and procedures governing sexual misconduct allegations, including publications entitled “Nondiscrimination and Anti-Harassment Policy” (“Anti-Harassment Policy”) and “Equity Complaint Process for Resolving Complaints of Harassment, Sexual Misconduct and Other Forms of Discrimination” (“Equity Complaint Process”). 54, The Handbook represents and otherwise obligates the University to the principle of, and the obligation to provide for, a “Student Conduct System at the University of Dayton [...] [which guarantees] fimdamental faimess for all parties[.]” (Handbook at 20.) ‘The Handbook cites “the value and dignity of every person” as a “key concept” in which the Student Conduct system is rooted. (Id; see also Anti-Harassment Policy at 1.) 55. When sexual harassment allegations are raised, the Handbook obligates the University to the principle of, and the obligation to provide for, “a prompt, thorough and impartial investigation” to be conducted “by trained Title IX investigators[.]” (Handbook at 55.) 56. According to the Equity Complaint Process, “(t]he investigators shall be members of the University community who are familiar with the policy prohibiting discrimination and ing and/or experience in the investigation and resolution of harassment and have specialized t discrimination and harassment complaints, including complaints relating to sexual violence.” (Equity Complaint Process at 6 7.b.i.)Case: 3:15-cv-00362-TMR Doc #: 1 Filed: 10/07/15 Page: 10 of 51 PAGEID #: 10 57. The roles of a le IX investigator are varied and conflicting, Investigators not only investigate and engage in fact-finding but also prepare a report and determine whether theit ‘own report presents sufficient “probable cause” to warrant proceeding with an adjudication of an accuser’s allegations, If Title IX investigators determine that their own report presents sufficient probable cause to proceed, then the case procceds to a disciplinary hearing. ‘The Title IX investigators, rather than being presented as true witnesses whose own credibility and professionalism should be explored, instead are delegated with the role of presenting the case file for the hearing. The Title IX investigators also collaborate with the UHB in determining which questions to be asked in the hearing of any witnesses the Title IX investigators and/or the UHB choose to present (a process in which there is no transparency, as explained infra) and, at the same time, present second-hand and hearsay testimony in their report to the UHB, including summaries of what witnesses supposedly said to them. ‘Thus, the Title IX investigators serve as investigators, prosecutors, judges and substitutes for witnesses who, in contrast to the Title IX investigators, would have first-hand evidence to present. 58. During the investigation, according to the Handbook, “Both the complainant and the respondent will be asked fo be interviewed and provide a written statement. A complainant or respondent may opt not to participate at all in the investigation or to provide a written statement in lieu of or in addition to any interview with the investigators.” (Handbook at 56 410.) Significantly, the Handbook does not warn parties that providing a written statement in lieu of an interview constitutes a failure to participate. 10Case: 3:15-cv-00362-TMR Doc #: 1 Filed: 10/07/15 Page: 11 of 51 PAGEID #: 11 59. The Handbook permits investigators to share with witnesses information or contentions obtained from other sources (Handbook at 50 (“Information will be shared as witnesses”)), thereby tainting their interviews. At the same time, the necessary with [. Handbook does not mandate or guarantee that all witnesses, or the accuser and the aecused, shall be treated the same or be provided with the same opportunities to comment upon other witnesses’ or parties’ contentions, 60. If the Title 1X investigators determine that their report establishes probable cause to believe that a violation has occurred, then they file their report with the University’s Office of Community Standards and Civility for use as @ case file in disciplinary proceedings. The case file substitutes for firsthand evidence, including witness testimony. 61. ‘The University does not afford an opportunity for the parties to review and comment upon a preliminary version of the investigators’ report before it is finalized and reviewed for a determination of probable cause, 62. Nor does the University afford an opportunity for the parties to review and ‘comment upon the investigators’ report before it becomes the hearing case file. 63. The University does not provide a party a right to contest or otherwise dispute what is contained in the hearing case file. 64, The University does not provide any process by which unreliable or otherwise objectionable content can be excluded from the investigators” report or the case file. 65. Nor does the University provide any process by which unreliable or otherwise objectionable evidence can be excluded from the hearing, 66. ‘The hearing procedures set forth in the Handbook include but are not limited to the following: uCase: 3:15-cv-00362-TMR Doc #: 1 Filed: 10/07/15 Page: 12 of 51 PAGEID #: 12 a, “The UHB consists of 3 to 5 trained [University] community members and has a majority of student members in each hearing” (Handbook at 57 415); b. The Handbook promises parties an opportunity to raise concems about the “possible conflict of interest or bias” of any UHB members to the ‘Community Standards & Civility staff (Handbook at 59); c. “Findings and consequences are voted on and approved by a majority vote” (Handbook at 57 46); and 4. “Board members vote using a preponderance of the evidence standard to determine what more likely than not occurred” (id. 17). 67. According to the Handbook, a student accused of violating the sexual harassment policy has a right “(tJo have complaints heard in substantial accordance with these procedures.” (Handbook at 53.) 68. The Handbook promises and represents that the investigation and heating process is “designed to provide a fair and reliable determination” and that such a process will be fair and reliable, (Handbook at 56 17.) 69. The Handbook specifically prohibits the presentation of any evidence to the UHB that was not first presented to the investigators, barring extraordinary circumstances. (Handbook at 56 FJ 10, 14, 15; Equity Complaint Process and 6.) 70. The Handbook does not vest anyone with authority to compel the attendance of any witness, Rather, “witnesses are not compelled to participate in the University Hearing Board ‘process and can only be addressed if present.” (Handbook at $8 4 12.) 71. The Handbook does not afford a respondent with the right to confront or cross- examine his accuser or any adverse witnesses. Instead, the UHB receives proposed questions 12Case: 3:15-cv-00362-TMR Doc #: 1 Filed: 10/07/15 Page: 13 of 51 PAGEID #: 13 from the parties, In a closed and undisclosed process, the UHB determines which proposed questions will and which proposed questions will not be presented af the hearing. (Handbook at 58 $f 12, 14.) “The UHB is not required to provide rationalfe] [sic] for the acceptance or denial of any question.” (Id. 12.) 72. The Handbook guarantees to a student accused of violating the sexual harassment policy the right “to refer to Inw enforcement and to have assistance.” (Handbook at 53.) 73. The Handbook promises that the University “will ensure that respondents ate offered appropriate support and are treated fairly in the University’s processes.” (Handbook at 51) 74, The Handbook does not afford a respondent with a guarantee of — ot even an option to choose ~ effective representation, The Handbook allows the parties to be accompanied by one “support person” during any meeting with investigators and during the UHB hearing (Handbook at 52-53, 56 J11, 60), but this person is not permitted to speak or otherwise participate (Equity Complaint Process at 8 7.b.i, 13-15). The University Responds to Accuser’s Complaint 75. On May 3, 2015, Accuser submitted a complaint form to the University accusing Pierre of “a sexual assault, or a rape.” 76. On May 4, 2015, David J. Sipusic, the University’s Title IX/Section 504 Coordinator and Equity Compliance Officer, notified Pierre of Accuser’s complaint. 71. _ Sipusiec, on behalf of the University, assured Pierre that the investigation would be “conducted by individuals who have received specialized training in those types of investigations.” (Title IX Notification at 2.) 13Case: 3:15-cv-00362-TMR Doc #: 1 Filed: 10/07/15 Page: 14 of 51 PAGEID #: 14 78. — Sipusic identified Lori Shaw and Victoria Vanzandt as the investigators assigned to Pierre’s case (collectively, the “Title IX investigators”). 79. ‘The University failed to mention the availability of, or to make available, accommodations for his leaming disability. Instead, when the University notified Pierre by letter dated July 1, 2015 that his case was scheduled for a Hearing, it notified Pierre that meaningless and irrelevant language interpretation and translation services were available. ‘The University has since revised its notifications to apprise students of the availability of disability accommodations, having realized, upon information and belief, that it had failed in its legal and moral obligation to provide assistance to Pierre, and others who came before him, because of his Teaming disability. Pierre Responds to Accuser’s Complaint 80. ‘The Handbook specifically permits a party in a Title IX investigation to submit a written statement in lieu of an interview. (Handbook at 56 10.) 81. Consistent with the rights granted in the Handbook, Pierre provided a written statement in lieu of an interview. 82. Pierre selected this option because of the effects his learning disability has on his ability to articulate his thoughts. 83, Without waming to Piene, the Title IX investigators, seizing upon Pierre’s decision to provide a written statement, unilaterally and without a good faith basis or justification concluded that Pierre had failed to participate fully in their investigation by not granting an interview, and denied Pierre crucial and meaningful opportunities to participate in the University’s investigatory and disciplinary process. 4Case: 3:15-cv-00362-TMR Doc #: 1 Filed: 10/07/15 Page: 15 of 51 PAGEID #: 15 84, As a result of the Title IX investigators’ unilateral and prejudicial decision denying Pierre an opportunity to participate fully in the process, Pierre was denied an opportunity to respond to new and different information and new and different theories of liability that Accuser, as well as the Title IX investigators themselves, raised during the course of the investigation, and inconsistencies, untruths and other misstatements that Accuser provided during the course of the investigation, as detailed below. 85, The University failed to warn Pierre that opting to provide a written statement in Jieu of an interview, as permitted by the Handbook, would result in such consequences. 86. The University failed to accommodate Pierre’s leaming disability by penalizing him for his decision to provide a written statement in lieu of an interview, Inadequate Notice of Charges, Lack of Opportunity to Respond 87. The Title IX Report included (or summarized) three statements from Aceuser: (1) the written statement accompanying her May 3, 2015 complaint; (2) the Title IX investigators’ summary of their May 18, 2015 interview with Accuser; and, (3) the Title IX investigators’ summary of their June 4, 2015 interview with Accuser, 88. Accuser’s statements varied in many respects, includin, a, In her May 18 interview, Accuser mentioned that the group left Pierre’s apartment for a few minutes and drove across the street to another student's apartment before returning to Pierre’s apartment. Accuser remained in the car and the group was there only briefly before returning to the apartment. Accuser did not mention this side trip in her May 3 complaint, Pierre also neglected to mention or discuss the side trip in his written statement, since it had not been in the May 3 Complaint, While 15Case: 3:15-cv-00362-TMR Doc #: 1 Filed: 10/07/15 Page: 16 of 51 PAGEID #: 16 the side trip appears to have been irrelevant, the Title IX investigators made note of his failure to mention the side trip, suggesting that he had not been forthcoming. b, In her May 3 complaint, Accuser alleges that Pierre “really persisted in getting me to come to his room” and “[sJomchow he lured me into his massive bed[.)” In her May 18 interview, Accuser admitted that Pierre merely “asked” her to come to his apartment and that “she went directly to [Pierre's] bed and laid down[,]” and rationalized that she did so because “[sJhe was tired and wanted to get some sleep[.]” Accuser abandoned her previous accusation that Pierre “persisted” and “lured” her. In the Title IX Report, the Title IX investigators failed to note this inconsistency in Aceuser’s stories. c. Inher May 3 complaint, Accuser claimed, “I would try to wiggle my way out” and “! tried to wrestle my way out of iff.” In her May 18 interview, Accuser provided a different version of her supposed “resistance.” Rather than claiming she tried to wrestle and combat Pierre, Accuser changed her story and instead contended that she “tried to curl up [...] and to make herself ‘small.’ Accuser also claimed in her May 18 interview that she tried to “divert” Pierre by saying, “so, are we going to wrestle now?” In the Title IX Report, the Title IX investigators failed to note this inconsistency in Accuser’s stories. 4d, In her May 18 interview, Accuser alleges that Pierre engaged in certain specific physical acts before they engaged in oral sex and intercourse. 16Case: 3:15-cv-00362-TMR Doc #: 1 Filed: 10/07/15 Page: 17 of 51 PAGEID #: 17 Specifically, Accuser alleges that Pierre, without consent, touched her breasts and vagina, In her May 3 complaint, Accuser did not mention or allege that Pierre touched her breasts or vagina without consent, In the Title IX Repor, the Title IX investigators failed to note this inconsistency in Accuser’s stories. €. In her May 3 complaint, Accuser claimed that she “groaned/whined loudly” during the sexual encounter. In her May 18 interview, Accuser changed her description from “groaned/whined loudly” to “moaned/softly yelled.” In her June 4 interview, Accuser said she did not yell or speak loudly because she did not want to make a “scene.” Upon information and belief, Accuser’s story shifted after she leamed that Pierre's roommate ‘was in the room next door during the entire encounter and could hear through the paper-thin walls. In the Title IX Report, the Title IX investigators failed to note this inconsistency in Accuser’s stories. Of note, the roommate flew from New Jersey to Dayton for the Hearing, yet the Title IX investigators failed and otherwise refused to call him as a witness before the UHB. 89, In Accuser’s June 4 interview, the Title IX investigators informed Accuser of Pierre’s statement and allowed her to respond to it. The Title IX investigators afforded no such opportunity to Pierre, as detailed below. 90. Pierre did not receive notice or an opportunity to respond fo Accuser’s new and different allegations against him, the details of Accuser’s supposed description of what oceurred, 17Case: 3:15-cv-00362-TMR Doc #: 1 Filed: 10/07/15 Page: 18 of 1 PAGEID #: 18 Accuser's description of the side trip that the group made early in the evening and, importantly, Accuser’s claims about their specific physical contact. 91. Pierre was denied an opportunity to review Accuser’s May 18, 2015 or June 4, 2015 interview statements until he was presented with the investigators’ final Title IX Report. ‘Once the Title IX Report was provided to Pierre, Pierre had no opportunity to respond to anything in the Report. Inconsistency in the Parties’ Opportunities to Respond 92. On June 4, the Title IX investigators informed Accuser of Piette’s entire statement and allowed her (o respond to it. 93. Pierre was not provided with Accuser’s May 18 or June 4 interview statements. He did not know anything about what Accuser had said on those occasions, nor was he aware of Accuser’s changing story, inconsistencies or newly-fabricated claims. He only leamed of such matters when he was presented with the Title IX Report. Once the Report was completed, Pierre was provided with no opportunity to respond or to correct the record, either for a supplemental Report or at the Hearing. Thus, in contrast to Accuser, who was provided with an opportunity on two occasions to react and respond to evidence and supposed evidence gathered during the course of the Title IX investigation, Pierre had no such opportunity, 94, The University, apparently recognizing that it had treated Accuser and Pierre in this and other fundamentally different ways to the prejudice and detriment of Pierre, attempted to justify this unfair treatment by stating that Pierre provided a written statement to the Title 1X investigators (which he was entitled to do), rather than grant an interview, and, by doing so, had failed to participate fully in the investigation and thus was denied the same opportunities provided to Accuser. 18Case: 3:15-cv-00362-TMR Doc #: 1 Filed: 10/07/15 Page: 19 of 51 PAGEID #: 19 95. Not only did Pierre have the clear right to provide a written statement rather than grant an interview, and not only did the University fail to warn him that doing so would lead to depriving him of a fair and full opportunity to respond to the allegations against him, but, as explained above, Pierre had good reasons to opt for a written statement in lieu of an interview: (1) his teaming disability adversely affects his ability to articulate his thoughts; and, (2) his decision to provide a written statement was consistent with the rights granted in the Handbook (Handbook at 56 ¥ 10). Unfairness in the Conclusions Drawn Against the Parties 96. Astonishingly, although they failed to make Pierre aware of Accuser’s new and different claims and allegations, the Title IX investigators criticized and reached adverse conclusions based upon Pierre’s feilure to comment on new aspects of Accuser’s testimony. 97. Specifically, the Title IX investigators criticized Pierre’s failure to address certain information ~ notwithstanding that he neither had notice of such information nor was he asked about such information, including: a. A side trip that the group made to another student’s apartment for a few minutes before returning to Pierre's apartment. Accuser did not mention this side trip in her complaint but mentioned it in her May 18 interview. ‘The Title IX investigators only asked Pierre to respond to the original complaint and did not provide him with an opportunity to respond to the May 18 interview. The Title IX investigators nonetheless noted in the Title IX Report that Pierre had failed to address or explain this side trip. b. The fact that Pierre consumed alcohol ~ another fact which Accuser did not mention in her original complaint — and notwithstanding that neither 19Case: 3:15-cv-00362-TMR Doc #: 1 Filed: 10/07/15 Page: 20 of 51 PAGEID #; 20 the Accused nor Pierre said or believed that Pierre’s consumption of alcohol played any role in the events of April 22-23. c. As noted above, Accuser in her original complaint did not accuse Pierre of touching her breasts or vagina without her consent, In fact, Accuser said nothing about Pierre touching her breasts or vagina, As a result, Pierre did not respond to an accusation of unconsented touching ‘since no such accusation had been made at the time the Title IX investigators provided Pierre with his only opportunity to respond to the accusations against him. Nonetheless, the Title IX investigators noted that Pierre did not respond to such an accusation, 98. It was manifestly unfair for the Title IX investigators to criticize Pierre for failing to address the above allegations because he received no notice of them and because the Title IX investigators failed and otherwise refused to provide Pierre with an opportunity to respond to Accuser’s belated accusations and contentions. 99. Accuser, as noted above, refused to produce the underwear and pants that she alleged Pieme “ripped off,” failed to make available a timely medical examination as the Handbook required and failed to produce the text exchanges between Accuser and Pierre in the day following their consensual sexual encounter. The Title IX investigators did not draw critical or adverse conclusions against Accuser for withholding evidence ~ in fact, the only objective evidence that could have been available ~ that she failed to preserve, produce or provide to the Title IX investigators, 100. The ‘Title IX investigators did not find that Accuser had failed to participate fully in the investigation, or even note in the Title IX Report that Accuser failed to obtain a timely 20Case: 3:15-cv-00362-TMR Doc #: 1 Filed: 10/07/15 Page: 21 of 51 PAGEID #: 21 medical examination, produce or otherwise provide the clothing that she alleged Pierre “ripped off,” or produce or otherwise provide any emails or text messages exchanged between Accuset and Pierre, objective evidence that would have helped to prove or disprove Accuser’s allegations, Inadequate Training of Investigators and UHB Members 101. The Title IX investigators and the members of the UHB lacked the necessary taining and experience to evaluate sexual assault allegations. 102. One of the crucial pieces of evidence in a sexual assault or rape accusation is the forensic medical report. Indeed, in many cases, such analysis provides the lone objective piece of evidence. Despite the importance of such evidence, the University failed to train the Title IX investigators or the members of the UHB to understand and interpret the results of Accuser’s medical examination as to whether any type of sexual assault had occurred or not To make that failure even worse, the UHB failed to consult, either before the Hearing or at the Hearing, @ trained professional to explain the results of Accuser’s medical examination. Such analysis would have informed the UHB that there was absolutely no forensic or any other medical or physical evidence of a forced sexual encounter. 103, Ina June 8, 2015 email to Mary Buchwalder, a doctor at the University of Dayton Health Center, Shaw admitted that Vanzandt and she “are not medical experts” and were unable to “understand the physical findings” in the medical report, and the same would be true of UHB members. 104. As noted above, the Title IX investigators did not seek assistance from a trained professional at the Hearing, Upon information and belief, the Title IX investigators failed and otherwise refused to provide such professional assistance to the UHB because the forensic 21Case: 3:15-cv-00362-TMR Doc #: 1 Filed: 10/07/15 Page: 22 of 51 PAGEID #: 22 evidence objectively showed, and would have made it impossible for the UHB to decide anything but, that there had been no forced sexual assault or encounter of any nature, Inadequate Analysis of Accuser’s Medical Records 105, Shockingly, Shaw simply asked Buchwalder whether or not the findings noted in Accuser’s medical report were “consistent with penetration.” ‘There is no dispute that Accuser and Pierre engaged in sexual intercourse. 106, ‘The Title IX investigators neglected and otherwise failed to ask Buchwalder whether Accuser’s description of an alleged forced sexual assault was consistent with the finding that the vagina and cervix appeared “normal.” 107. Shaw neglected and otherwise failed to ask Buchwalder whether there was evidence of forced penetration. That was the crucial issue in this matter and the response would have been that no such evidence existed. 108. The Title IX investigators also neglected to establish Buchwalder’s qualifications to give any opinion in a sexual assault case, Selective Inclusion and Exclusion of Information from the Medical Report 109. The Title IX investigators selectively included only one page of Accuser’s medical records in the Title IX Report. 110. The UHB had notice that the medical records consisted of multiple pages. Indeed, in a document presented to the UHB, the Title IX investigators acknowledged that Buchwalder had provided to them “the complainant's medical records” (plural). 111, The Title IX investigators failed and otherwise refused to present to the UHB, or to include in the Title IX Report, Accuser’s entire medical record. Not a single member of the UHB requested the Title IX investigators to present the entire medical record. 22Case: 3:15-cv-00362-TMR Doc #: 1 Filed: 10/07/15 Page: 23 of 51 PAGEID #: 23 ‘Selective Inclusion and Exclusion of Information from the Police Case File 112, Upon information and belief, the Title IX investigators obtained at least 25 pages of records and evidence fiom the University of Dayton Police file. 113. The Title IX investigators selectively included only three items provided to them by the University of Dayton Police in the Title IX Report, consisting of less than half of the evidence the University of Dayton Police provided to them: (1) the statement provided by Pierre's roommate; (2) the statement provided by the female friend who was with them during the evening of April 22-23; and, (3) the written statement and text messages that Pierre provided 114, ‘The other information in the police file was also relevant to the case and should hhave been included. Examples of information which was crucial to a fair adjudication of the allegations but were omitted from the Title IX Report include: a, Accuser admitted that she did not go to the hospital for a rape examination, as the Handbook required her to do. Instead, she decided to obtain an exemination fiom a non-qualified University Health Center nurse, and thereafter failed and otherwise refused to provide an explanation for that failure, b. The University of Dayton Police file also would have made clear what the Title IX Report failed to mention or analyze: that Accuser “did not preserve any evidence that might have been on her clothing.” Accuser “had both showered and {aundered her clothing since the offense.” And she failed and refused to explain what had happened to the allegedly “tipped off” clothing, 23Case: 3:15-cv-00362-TMR Doc #: 1 Filed: 10/07/15 Page: 24 of 51 PAGEID #: 24 ©. As set forth in Detective Sweigart’s memorandum of his interview of Pierre’s roommate, Pierre's roommate noted that “the walls are paper thin{,]” thus making it clear that if Accuser had protested Pierre’s actions consistent with her description in her original complaint, Pierre's roommate would have heard her. , The University of Dayton Police report was cleat that the Accuser’s accusations were investigated and that the evidence was not even sufficient evidence ~ using a standard of ‘probable cause,’ which is lower than the ‘preponderance of the evidence’ standard used in the UHB determination — to have a grand jury hear the evidence. The University of Dayton Police report, obtained by the Title IX investigators, stated: “On 06-12-15 I (Detective Sweigart) went to the Montgomery County Prosecutor's Office and charges were refused[.J” The Title IX investigators failed and otherwise refused fo include this information in the Title IX Report or to explain to the UHB that the standard of proof used by law enforcement to determine whether to present a case to the ‘grand jury is a low standard of proof — in fact, lower than the standard to be used by the UHB to determine responsibility, 115. The Title IX investigators selectively excluded the information about the evidence that Accuser failed to preserve and produce and the information about the lack of criminal charges against Pierre despite the obvious relevance of this information. Improper Inclusion of Sexual History 24Case: 3:15-cv-00362-TMR Doc #: 1 Filed: 10/07/15 Page: 25 of 51 PAGEID #: 25 116. ‘The Handbook at p. 56 420 specifically probibits the inclusion of the accuser’s or the accused’s past sexual conduct to be part of the Hearing record (“The past sexual history or sexual character of a party will not be admissible by the other party in the investigation or hearing unless such information is determined to be highly relevant by the Title [X investigatory team assigned to the case. All such information sought to be admitted will be presumed inrelevant, and any request to overcome this presumption by the parties must be submitted to the Title 1X/504 Coordinator and Equity Compliance Officer for consideration.”) 117, Despite the explicit prohibition, the Title IX investigators improperly included in the Title IX Report Accuser’s contention that she was a virgin. 118. As noted above, the Title IX investigators failed and otherwise refused to note in the Title IX Report certain objective evidence that might have either corroborated or conflicted with this contention, such as the clothing Accuser wore, and, likewise, failed and otherwise refused to note that Accuser was responsible for the absence of such objective evidence. 119. ‘The Title IX investigators improperly included a description of Pierre’s “sexual character” — specifically, a witness’ contention that Pierre is “touchy.” Improper Inclusion of Text Messages 120. The Title IX investigators improperly included in the Title IX Report text messages between two of Accuser’s female friends, wherein they indicate that it was necessary for Accuser “to get in bed” rather than remain in the living room with Pierre, and they express feelings of uneasiness. 121. The text messages exchanged between Accuser’s friends have no probative value. They do not tend to prove or disprove what occurred between Accuser and Pierre and whether 25