Case: 3:15-cv-00362-TMR Doc #: 1 Filed: 10/07/15 Page: 26 of 51 PAGEID #: 26 their sexual contact was consensual, ‘These text messages were unreliable, and were highly inflammatory and prejudicial to Pierre. 122, The text messages exchanged bétween Accuser’s friends were prejudicial to Pierre because they insinuate that Pierre is untrustworthy. Pierre was prejudiced by the inclusion of these irrelevant text messages in the Title IX Report, which later became the Hearing case file. The University Denies Pierre’s Requests 123. On or about June 12, 2015, Pierre submitted to the University requests for discovery and objections to various policies and procedures invoked by the University and the Title IX investigators, including the following: A request for documentation of the Title IX investigators’ training and experience, in order to assure Defendant’s compliance with the Handbook, with Defendant’s obligation to act in good faith and fair dealing, and with Defendant's obligation to act in a manner consistent with ordinary principles of fairness and due process; A request to conduct a voir dire examination, through his counsel, in order to determine the Title IX investigators’ training and experience and to assure Defendant’s compliance with the Handbook, with Defendant’s obligation to act in good faith and fair dealing, and with Defendant’s obligation to act in a manner consistent with ordinary principles of faimess and due process; ‘A request for the names of the UHB chair and members, and documentation of their training and experience, in order to assure ‘Defendant's compliance with the Handbook, with Defendant’s obligation 26Case: 3:15-cv-00362-TMR Doc #: 1 Filed: 10/07/15 Page: 27 of 51 PAGEID #: 27 f£ to act in good faith and fair dealing, and with Defendant’s obligation to act in a manner consistent with ordinary principles of fairness and due process}, A request to conduct a voir dire examination of the UHB members, through his counsel, in order to determine whether any conflict of interest or bias exists and to assure Defendant’s compliance with the Handbook, with Defendant's obligation to act in good faith and fair dealing, and with Defendant’s obligation to act in a manner consistent with ordinary principles of fairness and due process; A request for all witness statements provided to the University or to the University of Dayton Police regarding Accuser’s allegations in order to assure Defendant’s compliance with the Handbook, with Defendant's obligation to act in good faith and fair dealing, and with Defendant's obligation to act in a manner consistent with ordinary principles of fairness and due process; A request for “alll reports of the University of Dayton Police [...] in reference to the investigation,” in order to assure Defendant's compliance with the Handbook, with Defendant’s obligation to act in good faith and fair dealing, and with Defendant's obligation to act in a manner consistent with ordinary principles of faimess and due process; A request for Accuser’s complete medical records, in order to assure Defendant's compliance with the Handbook, with Defendant's obligation to act in good faith and fair dealing, and with Defendant’s obligation to act 27Case: 3:15-cv-00362-TMR Doc #: 1 Filed: 10/07/15 Page: 28 of 51 PAGEID in a manner consistent with ordinary principles of faimess and due process; h, An objection to the conflicting duties of the Title IX investigators and a request fo institute procedures to assure Defendant’s compliance with the Handbook, with Defendant’s obligation to act in good faith and fair dealing, and with Defendant’s obligation to act in a manner consistent with ordinary principles of faimess and due process; i. An objection to the absence of any opportunity to challenge objectionable evidence and objectionable proposed questions and a request to institute procedures to assure Defendant's compliance with the Handbook, with Defendant’s obligation to act in good faith and fair dealing, and with Defendant's obligation to act in a manner consistent with ordinary principles of fairness and due process; J. An objection to the requirement to submit questions in advance of the Hearing to the UHB and a request to institute procedures by which witnesses could be called to testify and examined by the parties, in order to assure Defendant's compliance with the Handbook, with Defendant's obligation to act in good faith and fair dealing, and with Defendant's obligation to act in a manner consistent with ordinary principles of fairness and due process; k. An objection to the fact that the UHB members lack the legal education, training and experience to make relevance determinations and a request to institute procedures to assure Defendant’s compliance with the Handbook, 28Case: 3:15-cv-00362-TMR Doc #: 1 Filed: 10/07/15 Page: 29 of 51 PAGEID #: 29 a, with Defendant's obligation to act in good faith and fair dealing, and with Defendant’s obligation to act in a manner consistent with ordinary principles of fairness and due process; ‘An objection to the absence of a right by Pierre to confiont his Accuser, and a request to institute procedures to assure Defendant's compliance with the Handbook, with Defendant’s obligation to act in good faith and fair dealing, and with Defendant’s obligation to act in a manner consistent with ordinary principles of faimess and due process; . An objection to the fact that his “support person” was not permitted to participate and a request to institute procedures to assure Defendant's, compliance with the Handbook, with Defendant's obligation to act in good faith and fair dealing, with Defendant’s obligation to act in a manner consistent with ordinary principles of fairness and due process and with Defendant’s legal obligation to make appropriate accommodation in light of Picrre’s learning disabilities; and ‘An objection to the appeal process based upon the overly restrictive grounds for an appeal and the fact that appeals may be granted but are not guaranteed as a right and a request to institute procedures to assure ‘Defendant’s compliance with the Handbook, with Defendant's obligation to act in good faith and fair dealing, and with Defendant's obligation to act in a manner consistent with ordinary principles of fairness and due process. 29Case: 3:15-cv-00362-TMR Doc #: 1 Filed: 10/07/15 Page: 30 of 51 PAGEID #: 30 124. Pierre requested the University to follow a “fundamentally fair” process rather than the process being invoked. 125. On behalf of the University, William M. Fischer, Vice President for Student Development, denied Pierre’s requests. 126. On or about August 12, 2015, Pierre submitted to the University specific objections to the Title IX Report, including: a ‘The Title IX investigators failed to afford Pierre the same opportunity for rebuttal as they provided to Accuser. ‘The Title IX investigators improperly criticized Pieme in the Title IX Report for failing to address allegations of which he was never made aware, For example, Accuser did not allege in her May 3 complaint that Pierre touched her breasts and vagina, Accuser did not identify these specific physical acts until her May 18 interview. Pierre was not afforded ‘an opportunity to respond. The Title IX investigators improperly included in the Title IX Report an allegation about Accuser’s sexual history. ‘The Title IX investigators improperly included in the Title IX Report the text messages between two of Accuser’s female friends, ‘The Title IX investigators selectively included only one page of medical records in the Title IX Report. ‘The Title IX investigators failed to ask appropriate and relevant questions about the contents of Accuser’ medical report to a person qualified to testify as a medical expert. 30Case: 3:15-cv-00362-TMR Doc #: 1 Filed: 10/07/15 Page: 31 of 51 PAGEID #: 31 g. The Title IX investigators selectively included only three items provided to them by the University of Dayton Police in the Title IX Report. 127. Pierre requested that the Title IX Report be stricken. 128. On behalf of the University, Sipusic denied Pierre’s request. 129. On or about August 19, 2015, Pierre submitted to the University an objection to the fact that the University failed to provide him with Accuser’s medical records in a timely fashion, thereby preventing him from finding a medical expert who could fully explain the significance and meaning of the findings noted in Accuser’s medical report. 130. Pierre again requested that thie Title IX Report be stricken 131. Again, the University denied Pierre’s request The Fundamentally Unfair Hearing 132. On August 20, 2015, the UHIB held a Hearing to adjudicate the allegations against Pierre. 133. The University failed to provide any information about the UHB members to Pierre in advance, thereby depriving Pierre of the opportunity to raise concems about “possible conflict of interest or bias,” as guaranteed by the Handbook. (Handbook at 59.) 134, The UHB lacked the necessary training or experience to determine which questions to ask or to comprehend the forensic information, however scant, that was presented during the Hearing. 135. The UHB lacked the necessary training or experience to make legal determinations, including determinations of relevance, 136. ‘The UHB lacked the necessary training or experience to evaluate sexual assault allegations. 31Case: 3:15-cv-00362-TMR Doc #: 1 Filed: 10/07/15 Page: 32 of 51 PAGEID #: 32 137, No member of the UHB was trained to understand or interpret the results of Aceuser’s medical examination as to whether rape or any type of sexual assault had occurred or had not occurred, The UHB failed to call any trained expert witnesses who could have interpreted the results of the medical examination and would have informed the UHB that no rape or sexual assault had occurred. 138, The UHB did not consist of “a majority of student members” as guaranteed by the Handbook. (Handbook at $7 5.) One member of the UHB who was counted as a student was, in fact, a University staff member whom the University compensates and who, incidentally, also took graduate courses. 139, The Hearing lasted only about 20 minutes. 140, No witnesses were placed under oath at the Hearing 141, No questions were asked of the witness whom Pierre selected, his roommate, despite the fact that the foommate flew from New Jersey to Dayton in order to provide evidence at the Hearing. In fact, the UHB failed and refused to call Pierre's roommate as a witness at all, 142, If asked, Pierre’s roommate would have testified to the following information: a, Sometime after 4 am., he saw Accuser walking out of Pierre’s bathroom and into his bedroom. She was wearing her pants and blouse when he saw her. She appeared (o be totally comfortable, did not look uncomfortable in any way, and did not say anything that alerted the roommate to any issues or problems. b. Because Accuser denied seeing Pierre’s roommate during this crucial time period, Pierre's roommate’s information was vitally important, 32Case: 3:15-cv-00362-TMR Doc #: 1 Filed: 10/07/15 Page: 33 of 51 PAGEID #: 33, c. Pierre’s roommate stayed awake until approximately 5:30 a.m. and heard no noise from Piene’s bedroom, Had there been any noise, he would have heard it, because “the walls are paper thin.” 143, The UHB failed and refused not only to call crucial witnesses but even failed and refused to ask anything but superficial questions of Pierre or to allow him to provide complete testimony. ‘The UHB asked virtually nothing of Pierre except why he believed Accuser had consented to their sexual encounter and, even regarding that inquiry, the UHB asked no follow- up questions. 144, The posing of that question shows that the UHB improperly had put the burden of proof on Pierre to show his innocence. 145. The University deprived Pierre of the right to confront or cross-examine his ‘Accuser and any adverse witnesses. 146. The UHB failed and refused to ask any questions of Accuser and did not even command her to appear in the Heating Room. 147, The UHB called no witnesses to testify and failed and refused to provide Pierre with an opportunity to examine any witness who had provided supposed evidence to the Title IX investigators and which was included in the Title IX Report. re of effective assistance and representation in the 148. The University deprived Hearing, allowing only the presence of a “support person” whose patticipation was prohibited, This also constituted a failure to accommodate Pierre’s learning disability. A “support person” could have assisted, and should have been allowed to assist, Pierre with his inability to articulate his thoughts. 33,Case: 3:15-ev-00362-TMR Doc #: 1 Filed: 10/07/15 Page: 34 of 51 PAGEID #: 34 The Decision 149. On August 21, 2015, the UHB issued its “Official Notice of Outcome” and sent a letter to Pierre informing him that he had been found responsible for sexual harassment and suspended from the University for one semester (“Decision”). 150, If the UHB did, in fact, credit Accuser’s allegations of forcible rape, then they ‘would have imposed more severe consequences, ¢.g., & year-long suspension or expulsion. If the_ UHB did not fully credit her allegations, then its finding of responsibility was improper. 151. The UHB’s Decision was premised on the following finding: “The respondent ‘was unable to demonstrate that he received any words or actions that indicated he had effective consent for sexual intercourse or sexual contact. This was illustrated by his general indication that he interpreted her body language as consent but failed to give specific examples of what this body language entailed.” 152, The University failed to notify Pierre that the UHB — improperly ~ would place the burden on him “to demonstrate that he received [...] effective consent” and “to give specific examples of what this body language entailed.” 153. The UHB impermissibly placed the burden on Pierre to prove his innocence and establish effective consent in violation of Defendant's obligation to act in good faith and fair dealing, Defendant’s obligation to act in a manner consistent with ordinary principles of fairness and due process and Defendant’s obligation to make appropriate accommodation in light of Pierre’ learning disabilities. 154, ‘The University improperly placed the burden on Pierre despite the Handbook’s provision that UHB members “vote using a preponderance of the evidence standard to determine 34Case: 3:15-cv-00362-TMR Doc #: 1 Filed: 10/07/15 Page: 35 of 51 PAGEID #: 35, what more likely than not occurred[,]” (Handbook at $7 §[7), clearly placing the burden on Accuser to prove her accusation by a preponderance of the evidence. The Appeal 155. On or about August 25, 2015, Pierre filed a written appeal of the UHB’s findings and consequences to the JRC. 156, The Handbook does not permit an in-person appeal hearing. Rather, it provides that “the IRC will convene to deliberate over the issues presented.” (Handbook at $9 410.) 157. Restricting the appeals process to a closed, non-transparent proceeding in which ‘an accused has no right to participate fundamentally violates ordinary principles of fairness and due process. 158. ‘The Handbook identifies the following criteria for an appeal: a, “New evidence or information that did not exist at the time of the hearing or investigation that could have a bearing on the decision is discovered, or b. “There was a clear error in the process that could have had a bearing on the decision.” (Handbook at 55.) 159. Pierre identified many issues in his appeal, which the University unfairly ignored or rejected, including the following: a, The University impermissibly placed the burden on Pierre to prove his innocence and establish effective consent; b. ‘The University deprived Pierre of effective assistance and meaningful representation in the Hearing and, instead, improperly required him to represent himself; 35Case: 3:15-cv-00362-TMR Doc #: 1 Filed: 10/07/15 Page: 36 of 51 PAGEID #: 36 c. The University wrongfully denied Pierre’s request for Accuser’s statements and deprived him of the opportunity to respond; d, The University deprived Pierre of the right to confront Accuser, to examine and cross-examine witnesses, and to provide evidence to the UE; e. The University treated Pierre in a manner materially different and more prejudicial than the manner in which the University treated Accuser; £. The University provided no opportunity to challenge or object to the Title IX Report, which constituted the Hearing case file; g. The University improperly penalized Pierre for exercising his right to provide a written statement in lieu of an interview; fh. The University improperly deprived Pierre of his rights under the Handbook to “refer to law enforcement and have assistance” (Handbook at $3); i, The University improperly denied Pierre's requests for discovery, to have the full medical record presented to the UHB and to have a qualified person explain the medical findings, for a fair process, and to strike the Title IX Report, detailed above; and j. The UHB’s Decision was contrary to the evidence. 160. On behalf of the University, Christine Schramm, Dean of Students and Associate Vice President for Student Development, reviewed Pierre's request for appeal and refused to submit to appellate review any issues except the following: 36Case: 3:15-cv-00362-TMR Doc #: 1 Filed: 10/07/15 Page: 37 of SL PAGEID #: 37 a, Pierre’s assertion that the University failed and otherwise refused to provide accommodation for his leaming disability and, as a result, that he ‘was denied the opportunity to participate fully in the process; and b. Pierre’s assertion that he was not adequately afforded the right to review the materials gathered during the investigation because he chose to participate by submission of a written statement in lieu of an interview. 161. The JRC denied Pierre’s appeal on September 8, 2015. 162. No further appeal was available to Pieme, The Handbook provides that “{dJecisions rendered by the IRC or actions taken are final and are not subject to further appeal.” (Handbook at 59 11.) CLAIMS FOR RELIEF FIRST CLAIM FOR RELIEF reach of Contract) 163. Pierre repeats and re-alleges the allegations set forth in paragraphs 1 to 162. as if fully set forth at length herein, 164, The Handbook, Anti-Harassment Policy and Equity Complaint Process are valid, binding and enforceable contracts between the University and Pierre, 165. Under these contracts, like all contracts, the University has a duty to act in good faith and engage in fair dealing, 165, The Handbook, Anti-Harassment Policy and Equity Complaint Process are and ‘were supported by valid consideration. 167. Pierre fully complied with all of his obligations under the Handbook, Anti- Harassment Policy and Equity Complaint Process. a7Case: 3:15-cv-00362-TMR Doc #: 1 Filed: 10/07/15 Page: 38 of 51 PAGEID #: 38 168. The University breached its obligations under the Hendbook, Anti-Harassment Policy and Equity Complaint Process by, infer alia: a. Conducting a fundamentally unfair investigation and Hearing, contrary to the Handbook guarantees that “[fJhe Student Conduct System at the University of Dayton [...] provides fundamental fairness for all parties” (Handbook at 20), that the investigation will be “prompt, thorough and impartial” (Handbook at 55), end that the process will be “fair and reliable” (Handbook at 564 17); b. Failing to have investigators and UHB members properly trained and prepared to adjudicate a sexual assault allegation, contrary to the Handbook’s guarantees that investigators and UHB members will be “rained” (Handbook at 55, 57 4 5) and the Equity Complaint Process’ guarantee that investigators shall “have specialized training and/or experience in the investigation and resolution of discrimination and harassment complaints, including complaints relating to sexual violence” ©. 697d ©. Failing to accommodate Pierre’s leaming disability by, inter alia, and penalizing him for providing a written statement in lieu of an interview, prohibiting him from proceeding with a competent advisor, and improperly placing the burden of proof on Pierre to prove his innocence, contrary to the Handbook’s promise and representation that the University “will ensure that respondents are offered appropriate support and are treated fairly in the University’s processes” and the Anti-Harassment 38Case: 3:15-cv-00362-TMR Doc #: 1 Filed: 10/07/15 Page: 39 of 51 PAGEID #: 39 Policy’s promise and representation that “The University is committed to full compliance with the Americans With Disabilities Act of 1990 (ADA) and Section 504 of the Rehabilitation Act of 1973” (Handbook at $7; Anti- Harassment Policy at 5). 169. Pierre has incurred, and will continue to incur, significant damage as a direct result of the University’s breaches of the Handbook, Anti-Harassment Policy and Equity Complaint Process in an amount to be determined at trial. SECOND CLAIM FOR RELIEF (Negligence) 170. Pierre repeats and re-alleges the allegations set forth in paragraphs 1 0 169 as if fully set forth at length herein. 171, The University owed Pierre a duty to exercise reasonable care to avoid foreseeable injury. 172, The University breached its duty to Pierre by, inter alia, conducting a fundamentally flawed investigation and Hearing, finding Pierre responsible for sexual harassment and suspending him without legitimate grounds to do so. 173. As a direct and proximate result of the University's actions, Piee has been damaged in an amount to be determined at trial. THIRD CLAIM FOR RELIEF (Section 504 — Failure to Accommodate Disability) 174, Pierre repeats and re-alleges the allegations set forth in paragraphs 1 to 173 as if fully set forth at length herein. 39Case: 3:15-ev-00362-TMR Doc #: 1 Filed: 10/07/15 Page: 40 of 51 PAGEID #: 40 175. Pursuant to § 504 of the Rehabilitation Act, “No otherwise qualified individual with a disability in the United States [...] shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistanee[.]” 29 U.S.C. § 794@). 176, The University receives federal financial assistance and is thus subject to § 504 of the Rehabilitation Act. 177. The University was aware and on notice of Pierre’s learning disability. 178, The University failed to provide necessary accommodations for Pierre’s disability and failed to engage in an interactive process to consider or search for possible accommodations for Pierre’s disability. The University’s failures are exemplified by the conduct described below. a, The University improperly penalized Piene for providing a written statement in lieu of an interview despite knowing that his learning disability adversely affects his ability to articulate his thoughts. In addition, Pierre’s decision to provide a written statement was consistent with the rights granted in the Handbook (Handbook at 56 § 10), and the University failed to wam Pierre that exercising his right to provide a written statement would constitute a failure to participate fully in the investigation or come with other consequences. b. The University deprived Pierre of effective assistance and representation of his choosing despite its awareness of Pierre's difficulties with the ability to articulate his thoughts. Prior to his Hearing, Pierre objected to the fact that his “support person’ would not be permitted to participate and 40Case: 3:15-cv-00362-TMR Doc #: 1 Filed: 10/07/15 Page: 41 of 51 PAGEID #: 41 requested that the University install a new “fundamentally fair” process, but the University denied his request. c. The University improperly placed the burden on Pierre to prove effective consent despite its awareness of Piene’s difficulties with the ability to articulate his thoughts. Pierre had no notice that the burden of proof would be improperly placed on him to prove effective consent and no ‘opportunity to request altemative arrangements as an accommodation for his learning disability. 179, The University’s failure to accommodate Pierre’s disability deprived Pierre of a fair investigation and Hearing. FOURTH CLAIM FOR RELIEF (Americans with Disabilities Act ~ Failure to Accommodate Disability) 180. Pierre repeats and re-alleges the allegations set forth in paragraphs 1 to 179 as if fully set forth at length herein, 181, ‘The Americans with Disabilities Act provides, “No individual shall be discriminated against on the besis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” 42 U.S.C, § 12182. 182, The University qualifies as @ place of public accommodation pursuant to 42 US.C. § 12181(7)) (providing that “a nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education” is considered a place of public accommodation). 183, The University was aware and on notice of Pierre’s learning disability. 41Case: 3:15-cv-00362-TMR Doc #: 1 Filed: 10/07/15 Page: 42 of 51 PAGEID #: 42 184, ‘The University failed to provide necessary accommodations for Pierre’s disability and failed to engage in an interactive process to consider or search for possible accommodations for Pierre's disability. The University’s failures are exemplified by the conduct described below. a, The University improperly penalized Pier for providing a written statement in lieu of an interview, despite knowing that his learning disability adversely affects his ability to articulate his thoughts. In addition, Pierre’s decision to provide a written statement was consistent with the rights granted in the Handbook (Handbook at 56 10), and the University failed to war Pierre that exercising his right to provide a written statement would constitute a failure to participate fully in the investigation or come with other consequences. b. The University deprived Pierre of effective assistance and representation of his choosing despite its awareness of Pierre's difficulties with the ability to articulate his thoughts. Prior to his Hearing, Pierre objected to the fact that his “support person” would not be permitted to participate and requested that the University install a new “fundamentally fair” process, but the University denied his request, ¢. The University improperly placed the burden on Pierre to prove effective consent despite its awareness of Pierre’s difficulties with the ability to articulate his thoughts, Pierre had no notice that the burden of proof would be improperly placed on him to prove effective consent and no opportunity to request altemative arrangements as an accommodation for his learning disability. 42Case: 3:15-cv-00362-TMR Dac #: 1 Filed: 10/07/15 Page: 43 of 51 PAGEID #: 43, 185, The University’s failure to accommodate Pierre’s disability deprived Pierre of a fair investigation and Hearing. FIRTH CLAIM FOR RELIEF. (Violation of Title IX — Erroneous Outcome) 186. Pierre repeats and re-alleges the allegations set forth in paragraphs 1 to 185 as if fully set forth at length herein. 187. Title IX prohibits discrimination on the basis of sex in a school’s “education program or activity.” “Activity” in the context of Title IX includes all of the school’s operations, including its disciplinary and grievances procedures. 20 U.S.C. §§ 1681(a), 1687. 188. ‘The University receives federal financial assistance and is thus subject to Title IX. 189, In virtually all cases of campus sexual misconduct, the accused student is male and the accusing student is female. Upon information and belief, there is a history of decision- making at the University tending to show that accusing female students receive favorable treatment over accused male students. 190, The University has created an environment and in fact conducted an investigation and Hearing in which Piere, an accused male student, was fundamentally denied due process as to be virtually assured of a finding of guilt. Such a biased and one-sided process deprived Pierre, as a male student, of educational opportunities on the basis of sex. 191. The University, its investigators, the UHB and the IRC applied archaic assumptions in investigating and reviewing the allegations against Pierre, 192. Pietre’s gender was a motivating factor in the University's etroncous findings and decision to impose discipline. 43Case: 3:15-cv-00362-TMR Doc #: 1 Filed: 10/07/15 Page: 44 of 51 PAGEID #: 44 193. Asa direct result of the University’s discriminatory practices, Pierre was denied a fundamentally fair heating, the outcome was erroneous and Pierre has been damaged in an amount to be determined at trial. SIXTH CLAIM FOR RELIVE (Violation of Title IX - Deliberate Indifference) 194, Pierre repeats and re-alleges the allegations set forth in paragraphs 1 to 193 as if fully set forth at length herein. 195, The University had actual notice of the irresponsible, improper and sexually- biased manner in which the allegations against Pierre were being investigated and adjudicated 196. The University, despite having the authority to institute corrective measures to stop the misconduct, was deliberately indifferent to the misconduct. 197, ‘The University’s deliberate indifference was motivated by Pierre's gender. The University tolerated and endorsed procedures and policies which effectively deprived Pierre, a male student accused of sexual assault, of his right to a fair hearing. 198. As a direct result of the University’s deliberate indifference, Pieme has been damaged in an amount to be determined at trial. SEVENTH CLAIM FOR RELIEF (Vacatur of the Arbitration Decision on the Basis of Partiality) 199. Pierre repeats and re-alleges the allegations set forth in paragraphs | to 198 as if fully set forth at length herein. 200. Pursuant to the Ohio Arbitration Act (“OAA”), Ohio Rev. Code Ann, § 2711.10(B), the Court is empowered to vacate an arbitration decision when “there was evident partiality . . . on the part of the arbitrators.” 44Case: 3:15-cv-00362-TMR Doc #: 1 Filed: 10/07/15 Page: 45 of 51 PAGEID #: 45 201. The University conducted a fundamentally unfair investigation and Hearing, as detailed below. The University improperly afforded Accuser an opportunity to rebut Pierre’s contentions but afforded Pierre no opportunity to rebut new or different contentions that Accuser raised after filing the initial complaint, The Title IX investigators failed to inform the UHB about the many, material ways in which Accuser changed her story, failed and otherwise refused to provide the UHB with material evidence, and failed and otherwise refused to grant to Pierre the same rights and opportunities provided to Accuser. ‘The University failed to accommodate Pierre’s leaming disability by, inter alia, penalizing him for his decision to provide a written statement in liew of an interview. ‘The University improperly penalized Pierre for, in its view, withholding information without penalizing Accuser for her failure to preserve and produce evidence. Specifically, Accuser failed to produce any emails or text messages with Pierre, failed to produce the clothing that she wore on the night in question and she alleged Pierre “ripped off” and failed to follow the Handbook’s instruetions to seek immediate assistance and not to shower, wash anything or change clothes before seeking medical attention, No consequences followed from any of these failures, and Accuser’s failure to produce and preserve this evidence was not noted in the Title IX Report or presented to the UB. 45Case: 3:15-cv-00362-TMR Doc #: 1 Filed: 10/07/15 Page: 46 of 51 PAGEID #: 46 The University impermissibly placed the burden on Pierre to prove his innocence and establish effective consent, The University deprived Pierre of efifective assistance and meaningful representation in the Hearing and, instead, improperly required him to represent himself, ‘The University wrongfully denied Pierre’s request for Accuser’s statements and deprived him of the opportunity to respond. ‘The University deprived Pierre of the right to confront Accuser, to examine and cross-examine witnesses and to provide evidence to the UBB, ‘The University treated Pierre in a manner materially different and more prejudicial than the manner in which the University treated Accuser. ‘The University provided no opportunity to challenge or object to the Title IX Report, which constituted the Hearing case file. ‘The University improperly penalized Pierre for exercising his right to provide a written statement in lieu of an interview. ‘The University improperly deprived Pierre of his rights under the Handbook to “refer to law enforcement and have assistance” (Handbook at 33). The University improperly denied Pierre’s requests for discovery, to have the full medical record presented to the UHB and to have a qualified person explain the medical findings, for a fair process, and to strike the Title IX Report, detailed above. 46Case: 3:15-cv-00362-TMR Doc #: 1 Filed: 10/07/15 Page: 47 of 51 PAGEID #: 47 n. The UHB’s decision was contrary to the evidence. 202. ‘The University made other irrational, prejudicial and improper decisions. 203. ‘The University’s Decision finding Pierre responsible for sexual harassment and suspending Pierre should be vacated EIGHTH CLAIM FOR RELIER (Vacatur of the Arbitration Decision on the Basis of Misconduct) 204. Pierre repeats and re-alleges the allegations set forth in paragraphs 1 to 203 as if fully set forth at length herein. 205, Pursuant to the OAA, Ohio. Rev, Code Ann. § 2711.10(C), the Court is ‘empowered to vacate an arbitration decision when “the arbitrators were guilty of misconduct ... in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced.” 206. The University conducted a fundamentally unfair investigation. 207. The University deprived Pierre of the opportunity to rebut new or different contentions that Accuser raised after filing the initial complaint 208. ‘The University deprived Pierre of an opportunity to comment upon or respond to the Title IX Report, which became the case file for the Hearing. 209. The University conducted a fundamentally unfair Heating. 210. The University refuused to hear evidence pertinent and material to the controversy, including: a, Testimony from Picrre’s roommate; and b. Testimony from a medical expert qualified to explain the findings of Accuser’s medical records to the Title IX Investigators and the UBB. 47Case: 3:15-cv-00362-TMR Doc #: 1 Filed: 10/07/15 Page: 48 of 51 PAGEID #: 48 211. ‘The University deprived Pierre of an opportunity to confront or cross-examine his accuser and adverse witnesses. 212, The University deprived Pierre of effective assistance and representation of his choosing, 213. ‘The University improperly placed the burden on Pierre to prove effective consent, 214. ‘The University failed to accommodate Pierre's learning disability. 215. The University made other irrational, prejudicial and improper decisions. 216. ‘The University’s misconduct prejudiced Pierre by resulting in a fundamentally unfair Hearing, a determination that Pierre was responsible for sexual harassment that did not occur and an unjustified suspension, 217. ‘The University’s Decision finding Pierre responsible for sexual harassment and suspending Pierre should be vacated, PRAYER FOR RELIEF WHEREFORE, Pierre secks judgment as follows: 218. Awarding Pierre injunctive and equitable relief, including vacatur of the UHB"s Decision and reinstatement to the University with full standing, for the reasons set forth in Pierre’s Motion for Temporary Restraining Order and Preliminary Injunction; 219. Awarding Pierre compensatory damages for the injuries he has suffered as a result of the University’s wrongful conduct, including consequential and incidental damages in an amount to be determined at trial; 220. Awarding Pierre special damages in an amount to be determined at trial; 221, Awarding Pierre punitive damages in a just amount for the University’s willful and wanton conduct; 48Case: 3:15-cv-00362-TMR Doc #: 1 Filed: 10/07/15 Page: 49 of 51 PAGEID #: 49 222, Awarding Pierre pre-judgment and post-judgment interest; 223, Vacatur of the August 21,2015 Decision; 224, Awarding Pierre his costs, expenses and attomney’s fees incurred in connection with this action; and 225. Awarding Pierre such other relief as the Court finds just and proper. Dated: New York, New York Respectfully submitted, October 7, 2015 R. GINSBERG LAW, LLC Pl By: s/Peter R. Ginsberg Peter R. Ginsberg, pro hae vice 80 Pine St,, 33rd Floor ‘New York, NY 10005 (646) 374-0030 peinsberg@prglaw.com GREGER LAW OFFICE By:s/ Lawrence J. Greger Lawrence J. Greger Attomey at Law 002592 Suite 1100 Liberty Tower 120 W. Second St. Dayton, OH 45402 (937) 223-3153 larry @gregerlawoffice.com CARR & SHIVERDECKER By: s/ Merlyn D, Shiverdecker. Merlyn D. Shiverdecker 817 Main Street, Suite 200 Cincinnati, Ohio 45202 (813) 651-5652 carrshiverdecker@yahoo.com Attorneys for Plaintiff 49Case: 3:15-cv-00362-TMR Doc #: 1 Filed: 10/07/15 Page: 50 of 51 PAGEID #: 50 50Case: 3:15-cv-00362-TMR Doc #: 1 Filed: 10/07/15 Page: 51 of 51 PAGEID #: 51 VERIFICATION 1, Dyshawn Pierre, declare as follows. I am Plaintiff in the instant case. I have personal knowledge of myself, my activities and events in which I was involved, including those set out in the foregoing Verified Complaint. If called to testify, I would competently testify as to the matters stated herein. I declare that the foregoing is true and correct to the best of my knowledge, under penalty of perjury and pursuant to 28 U.S.C. § 1746. s/ Dyshawn Pierre Dyshawn Pierre Dated; October 7, 2015 St