John Doe v. University of Denver Et. Al.

Case 1:16-cv-00152 Document 2-1 Filed 01/20/16 USDC Colorado Page 1 of 59
IN THE UNITED STATES DISTRICT COURT FOR

THE DISTRICT OF COLORADO
Case No. 1:16-cv-00152
JOHN DOE,
Plaintiff,
UNIVERSITY OF DENVER;
UNIVERSITY OF DENVER BOARD OF
TRUSTEES; REBECCA CHOPP,
individually and as agent for
UNIVERSITY OF DENVER; KRISTIN
OLSON, individually and as agent for
UNIVERSITY OF DENVER; JEAN
MCALLISTER, individually and as agent
for UNIVERSITY OF DENVER;
KATHRYNE GROVE, individually and
as agent for UNIVERSITY OF DENVER;
and ERIC BUTLER, individually and as
agent for UNIVERSITY OF DENVER,
Defendants.
_____________________________________________________________________________________________________
COMPLAINT AND JURY DEMAND
_____________________________________________________________________________________________________
Plaintiff John Doe
(hereinafter referred to as Plaintiff), by his attorneys Nesenoff &
Miltenberg, LLP and Michael Mirabella P.C., as and for his Complaint, respectfully alleges as
follows:
THE NATURE OF THIS ACTION
1.
This case arises out of the actions taken and procedures employed by Defendants
University of Denver (Defendant University of Denver or University of Denver or the

University), University of Denver Board of Trustees (Defendant Board of Trustees), Rebecca
1
Plaintiff herewith files a motion to restrict access to information contained within the Complaint.
Chopp (Defendant Chopp), Kristin Olson (Defendant Olson), Jean McAllister (Defendant
McAllister), Kathryne Grove (Defendant Grove), and Eric Butler (Defendant Butler)
concerning allegations made against Plaintiff, a male freshman student at University of Denver as
a result of false allegations of nonconsensual sexual contact with fellow University of Denver
freshman student Jane Doe.
2.
The allegations involving Jane Doe purportedly refer to what was clearly
consensual sexual activity that occurred on the evening of October 8-9, 2014 (the Incident).
3.
On April 15, 2015, approximately six months later, Jane Does boyfriend
submitted a complaint of sexual misconduct on behalf of Jane Doe against Plaintiff. The University
of Denver opened its investigation of the complaint through its Office of Equal Opportunity
(OEO) on May 5, 2015.
4.
On May 12, 2015, Plaintiff received a Notice of Pending Review charge letter
from Defendant Butler, who vaguely indicated that Plaintiff may have violated the University of
Denvers policy against Non-Consensual Sexual Contact.
5.
On June 26, 2015, Plaintiff learned of the specific allegations against him for the
first time, when he received a copy of the Preliminary Report on Investigation (Preliminary
Report or the Report), after he had already participated in two interviews concerning the
charges against him.
6.
Thereafter, on July 15, 2015, Defendant Butler issued a decision letter, finding
Plaintiff responsible for the charges (the Decision). Defendant Butler advised that the matter
would be assigned to an Outcome Council for a determination of the appropriate sanctions.
7.
On July 22, 2015, the Outcome Council assessed a sanction of permanent
dismissal from the University and a trespass order (the Sanction). Plaintiffs appeal was denied
and the Sanction upheld. Thus, the Decision and the Sanction had the purpose and effect of
permanently expelling Plaintiff from University of Denver a month before the start of his
sophomore year.
8.
In addition to the damages sustained by Plaintiff, including his inability to
continue his education at University of Denver and receive his degree, Plaintiff has sustained
tremendous damages to his future education and career prospects as a result of the Decision and
Sanction.
9.
Throughout the investigative process, Defendants failed to abide by University of
Denvers own guidelines and regulations and acted in direct violation of federal and/or state law.
10.
A non-exhaustive list of Defendants wrongful actions include the following: (i)
Defendants failed to conduct a timely investigation of the allegations; (ii) Defendants failed to
conduct a thorough and impartial investigation; (iii) Defendants failed to provide Plaintiff proper
notice of the charges; (iv) Defendants evidenced a gender bias against Plaintiff as the male accused
of sexual misconduct throughout the investigative process; (v) Defendants made assessments of
credibility and evidentiary weight with respect to each party and witness without any ascertainable
rationale or logic; and (vi) Defendants failed to afford Plaintiff the requisite presumption of
innocence required by a preponderance of the evidence standard, all of which demonstrated
substantial procedural errors in violation of Title IX, the Fourteenth Amendment and other federal
and/or state laws.
11.
When Defendants subjected Plaintiff to disciplinary action, they did so in an
arbitrary and capricious way, and in discrimination against him on the basis of his male sex.
Defendants failed to adhere to University of Denvers own guidelines and regulations, and the
guidelines and regulations themselves are inherently discriminatory and insufficient to protect the
rights of male students. The Decision reached was discriminatory; given the evidence (or lack
thereof), a discriminatory bias against males and the underlying motive to protect University of
Denvers reputation and financial wellbeing was required for a conclusion of sexual misconduct
to be reached.
12.
Plaintiff has been greatly damaged by the actions of Defendants: his education
and career prospects have been severely compromised as he is unable to gain admission to another
university to obtain his degree, the significant monies spent on obtaining a college education at
University of Denver squandered. Additionally, as a result of Defendants actions and inactions,
Plaintiff has suffered physical, psychological, emotional and reputational damages, economic
injuries and the loss of educational and career opportunities.
13.
Plaintiff therefore brings this action to obtain relief based on causes of action for,
among other things, violations of Title IX of the Education Amendments of 1972, violation of the
14th Amendment Procedural Due Process, breach of contract and other state law causes of action.
THE PARTIES
14.
Plaintiff is a natural person, citizen of the United States, and resident of the State
of Illinois. During the events described herein, Plaintiff was a student at the University of Denver
and resided on the Universitys campus in Denver, Colorado.
15.
Upon information and belief, Defendant Colorado Seminary, known publicly as
University of Denver is a private, coeducational university in the city of Denver, Colorado, with
an address of 2199 S. University Boulevard, Denver, Colorado 80208.
16.
Upon information and belief, Defendant Board of Trustees is the governing body
of the University of Denver. It is composed of twenty-eight (28) voting members including alumni,
parents of students and the Chancellor of the University of Denver. According to its website, its
primary roles include selection and oversight of the Chancellor, management of the endowment
and investments of the University, oversight of financial and other controls, legal and other
compliance, and approval of strategic plans and annual budgets.
17.
Upon information and belief, Defendant Chopp is an individual residing in the
State of Colorado and was the Chancellor of the University of Denver at all relevant times herein.
18.
Upon information and belief, Defendant Olson is an individual residing in the
State of Colorado and was Director of Student Conduct at the University of Denver at all relevant
times herein.
19.
Upon information and belief, Defendant McAllister is an individual residing in
the State of Colorado and began her employment as Title IX Coordinator at the University of
Denver on June 1, 2015.
20.
Upon information and belief, Defendant Grove is an individual residing in the
State of Colorado and was the Director of the OEO and Title IX Coordinator at the University of
Denver, until her resignation on July 2, 2015.
21.
Upon information and belief, Defendant Butler is an individual residing in the
State of Colorado and was an investigator with the OEO at the University of Denver at all relevant
times herein.
22.
Plaintiff and Defendants University of Denver, Board of Trustees, Chopp, Olson,
McAllister, Grove and Butler are sometimes hereinafter collectively referred to as the Parties.
JURISDICTION AND VENUE
23.
This Court has federal question, diversity and supplemental jurisdiction pursuant
to 28 U.S.C. 1331, 28 U.S.C. 1332 and under 28 U.S.C. 1367 because: (i) the federal law
claims arise under the constitution and statutes of the United States; (ii) Plaintiff and Defendants
are citizens of different states and the amount in controversy exceeds $75,000.00, exclusive of
costs and interest; and (iii) the state law claims are so closely related to the federal law claims as
to form the same case or controversy under Article III of the United States Constitution.
24.
This Court has personal jurisdiction over Defendant University of Denver on the
grounds that it is conducting business within the State of Colorado.

25.
This Court has personal jurisdiction over Defendant Board of Trustees on the
grounds that it is conducting business within the State of Colorado and is the governing body of
the University of Denver.
26.
This Court has personal jurisdiction over Defendant Chopp on the grounds that
she was acting as an agent of University of Denver at all relevant times herein.
27.
This Court has personal jurisdiction over Defendant Olson on the grounds that
28.
This Court has personal jurisdiction over Defendant McAllister on the grounds
that she was acting as an agent of University of Denver at all relevant times herein.
29.
This Court has personal jurisdiction over Defendant Grove on the grounds that
30.
This Court has personal jurisdiction over Defendant Butler on the grounds that he
was acting as an agent of University of Denver at all relevant times herein.

31.
Venue for this action properly lies in this district pursuant to 28 U.S.C. 1391
because the University of Denver is considered to reside in this judicial district and a substantial
part of the events or omissions giving rise to the claim occurred in this judicial district.
FACTUAL ALLEGATIONS COMMON TO ALL CLAIMS

I.
32.
Agreements, Representations, Covenants &

Warranties Between Plaintiff and University of Denver
Plaintiff excelled at a high school in Illinois where he was a member of the
National Honor Society, earned an AP Scholar with Honors award from the College Board and
was a member of the North Suburban All-Academic team for High School Hockey. Setting his
sights on an innovative and demanding undergraduate program, he applied to the University of
Denver as a member of the class of 2018. As a result of his various achievements, he was awarded
the Provost Scholarship by the University of Denver.
33.
Upon his acceptance, the University of Denver provided Plaintiff with copies of
its school policies, including the University of Denvers Office of Equal Opportunity Procedures
(the Procedures), the 2014-2015 and 2015-2016 editions of which are available on the
Universitys website.
34.
With respect to cases involving allegations of sexual discrimination, sexual
harassment, and sexual assault, University of Denvers Procedures state in relevant part:
These Procedures address all forms of sexual discrimination,
including sexual harassment and sexual violence. They also
address stalking and relationship violencePursuant to
Title IX of the Education Amendments of 1972, the
University of Denver does not discriminate on the basis of
sex in its educational, extracurricular, athletic, or other
programs or in the context of employment.
These Procedures prohibit sexual harassment, sexual
violence, stalking, and relationship violence against
University community members of any gender, gender
identity, gender expression or sexual orientation.
35.
University of Denvers Office of Equal Opportunity Procedures, in conjunction
with the University of Denver Honor Code and Student Conduct Policies and Procedures set forth
the processes by which University of Denver students who have been accused of violating one or
more of the enumerated policies are investigated, heard, and, possibly, disciplined.
A complaint that alleges a violation of the Universitys policies related to
36.
nondiscrimination is addressed through the Universitys OEO. Upon receipt of a report alleging
sexual misconduct, the Title IX Coordinator or OEO will conduct an initial assessment of: the
incident or behavior at issue; any risk of harm to the parties, any other individuals or the broader
campus community; the complainants desired course of action; and the necessity for any interim
measures to protect the safety of the complainant, any other individuals or the broader community.
The Procedures note that University of Denver will seek action consistent with the Complainants
request.
37.
As part of the initial assessment, the Procedures provide substantial and
disproportionate accommodations to the complainant, including:
38.
Notify the complainant of the right to make a report (or

decline to make a report) with law enforcement if the
conduct is criminal in nature, and if requested, assist them
with notifying law enforcement;
Notify complainant of the availability of medical treatment

to address physical or mental health concerns and preserve
evidence;
Provide complainant with information about on and off

campus resources and the range of interim measures;
Discuss complainants expressed preference for manner of

resolution;
Explain the Universitys policy prohibiting retaliation; and
Explain the role of a support person or advisor.

Where the initial assessment concludes that sanctions may be appropriate, the
University will initiate an investigation. The University will designate an investigator who has
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specific training and experience investigating allegations of harassment, discrimination and sexual
harassment. The investigator may be an employee of the University or an external investigator.
The investigator must be impartial and free of any conflict of interest.
39.
The Procedures specify that the investigation is designed to provide a fair and
reliable gathering of the facts. It must be thorough, impartial and fair and ensure that all
individuals will be treated with appropriate sensitivity and respect.
40.
Both parties may have an advisor or support person present at any meeting related
to the investigation.
41.
The parties may provide any relevant information to the investigator, including
the names of witnesses and documents to review, at any time before the investigation is closed.
42.
The complainant and respondent will have an equal opportunity to be heard, to
submit information, and to identify witnesses who may have relevant information. Witnesses must
have observed the acts in question or have information relevant to the incident, and cannot be
participating solely to speak about an individuals character.
43.
While the Procedures note that the complainants prior sexual history is not
relevant and will not be admitted except in limited circumstances, the investigator may consider
prior allegations of, or findings of responsibility for, similar conduct by the respondent.
44.
The goal of the investigation is to gather all relevant facts, make factual
conclusions, determine whether there is a policy violation and if warranted, refer the matter for
appropriate sanctions.
45.
The University will seek to conclude the investigation within forty-five (45) days
of receiving the report; this time frame may be extended for good cause with written notice to the
parties of the delay and the reason for the delay.
46.
At the conclusion of the investigation, the investigator will prepare a written report
that summarizes the information gathered. The investigator is given significant discretion regarding
what information to include in the investigation report: he or she may redact information deemed
irrelevant, more prejudicial than probative, or immaterial; the investigator may redact statements
of personal opinion rather than direct observations or reasonable inferences; and the investigator
may redact statements as to general reputation for any character trait, including honesty.
47.
Before the investigation report is finalized, the complainant and respondent will
each be given an opportunity to review the preliminary report and offer oral or written comment.
The parties may submit any additional comments or evidence to the investigator within five (5)
business days. After the five day period has lapsed, the investigator will make a determination by a
preponderance of the evidence standard whether sufficient information exists to support a finding
of responsibility for violation of the Procedures. The final written report must include the
determination of responsibility and the rationale for the determination.
48.
Significantly, University of Denver employs the single investigator model, which
allows one individual to conduct the entire investigation, make a determination of responsibility
and issue a corresponding finding. As the Universitys Procedures do not provide for a hearing on
the charges, the respondent is denied the opportunity to confront his accuser, question any witnesses
against him and present his defense before an impartial decision maker.
49.
Once the investigation report has been finalized, a member of the OEO will meet
with complainant and respondent to disclose the decision. Thereafter, the OEO will issue a letter of
determination.
50.
If it is concluded that a violation occurred, the investigative findings will be
referred to an Outcome Council.
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51.
The Director of Student Conduct and/or the Director of Graduate Student Services
will convene an Outcome Council within five (5) business days. The Outcome Council is composed
of three (3) members of the university community who have sufficient training or experience to
serve in this capacity.
52.
The Outcome Council must be composed of neutral and impartial decision-makers
who approach each case without preconceived ideas of responsibility. Although required to review
all case materials, the Outcome Council only serves as a rubber stamp; it does not have the authority
to challenge or overturn the findings of the investigator. Thus, the Outcome Councils sole task is
to impose sanctions that correspond to the investigators determination.
53.
The respondent and complainant must be notified of the individuals who will be
serving on the Outcome Council and have the right to object to the participation of any member
based on demonstrable bias within two (2) business days.
54.
Although the Outcome Council is granted discretion in determining what sanctions
to impose, the following criteria should be considered: the nature and severity of the act; the number
of complainants; prior student conduct history of the respondent; the councils assessment of the
effect the policy violation has on the complainant, community and university; and community
safety. Denvers Procedures do not address how the Outcome Council must weigh each of these
factors to ensure consistency across analogous cases.
55.
While the Outcome Council is composed of only three members, a unanimous vote
is not required for a determination of sanctions.

56.
Notably, the Procedures explicitly state that violations of the non-consensual
sexual contact provision of these Procedures typically result in a dismissal. (emphasis added).
11
Thus, the investigators are cognizant of the probable outcome when their investigation report
concludes a respondent has violated the non-consensual sexual contact provision.
57.
Once the Outcome Council has rendered a finding, a member of the Outcome
Council will offer both parties the opportunity to meet individually and share the decision made,
within two (2) business days.
58.
At this meeting, written notification of the decision will be provided and appeal
options will be discussed.

59.
In the event the Outcome Council assesses a suspension or expulsion, the
imposition of sanctions take immediate effect, regardless of a pending appeal process.

60.
61.
Appeals will only be considered in the following circumstances:
The existence of procedural error(s) so substantial that it

would likely alter the investigative findings and ultimate
outcome;
Presentation of new and significant evidence which was not

reasonably available at the time of the initial investigation
and would likely alter the investigative findings and ultimate
outcome; and/or
The outcomes imposed are substantially disproportionate to

the violation.
An appeal will only be considered if submitted to the appellate officer identified
by the Outcome Council within five (5) calendar days.

62.
If an appeal is filed, the other party will be notified that an appeal has been
received and will be given an opportunity to submit a written response.

63.
The appellate officer will communicate the result of the appeal to both parties
within five (5) business days from the date of the submission of all appeal documents. Appeal
decisions are final.
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64.
The Procedures provide that University of Denver will make every effort to
resolve all reports within sixty (60) days. This time frame may be extended for good cause as
necessary; for instance, to ensure the integrity and completeness of the investigation. Any
extension of the timeframe, and the reasons for such extension, must be shared with the parties in
writing.
65.
The Procedures further state that complainants are encouraged to report
allegations of sexual misconduct as soon as possible in order to maximize the Universitys ability
to respond promptly and effectively. Although there is no time restriction on when a complaint
can be filed, complainants are encouraged to make a report within 180 days of the last incident.
66.
Finally, complainants and respondents are granted the following non-exhaustive
rights throughout the investigation process:
To be treated with dignity and respect;
To a prompt and thorough investigation;
To object to the participation of the assigned investigator, a

member of the Outcome Council or appellate authority based
on demonstrable bias;
The right to request reasonable assistance and support;
The right to privacy;
The right to be free from intimidation and retaliation;
The right to written notification of a pending investigation;
The right to share information in support of his perspective;
The right to provide the names of other individuals who have

information directly relevant to the incident; and
The right to have a support person of his choice present

throughout the process.
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II.
The Night of October 8-9, 2014 (the Incident)

67.
On the evening of October 8, 2014, Plaintiff and his roommate, M.F., were in
their room studying for a midterm examination they had the following day. They had been studying
for about three hours when Jane Doe and two of her male friends, C.Z. and J.M., unexpectedly
knocked on their door at approximately 10:30 p.m. Jane Doe, C.Z. and J.M. all appeared to be
coherent and clear-headed and did not give off any indication that they had been drinking alcohol
prior.
68.
Plaintiff and Jane Doe had been friends, within a group of six or seven people,
for over a month. Although Plaintiff did not invite them to his room that evening, it was not
uncommon for Jane Doe or the other friends to stop by unannounced.
69.
The two roommates continued to study while the three visitors engaged in
conversation, which lasted for close to three hours. Jane Doe sat on Plaintiffs bed while the other
two friends sat on the bed of M.F. Jane Doe did not consume any alcohol during this three hour
span.
70.
At approximately 1:30 a.m., C.Z. and J.M. announced that they were leaving the
room, to which Jane Doe responded that she planned to stay a while longer. Plaintiff told Jane Doe
that he and his roommate planned to study for a few additional hours; Plaintiff was rather stressed
as it was his first college midterm examination. Notwithstanding, Jane Doe reiterated that she
wanted to remain in the room with them.
71.
About twenty minutes later, Plaintiff and M.F. informed Jane Doe that they were
leaving the room to print study-related materials in the lobby of their dormitory building. Plaintiff
assumed that Jane Doe would leave their room during this time. However, upon his return, Plaintiff
was surprised to find that Jane Doe had instead gotten under the covers of his bed and appeared to
14
be asleep. Plaintiff and M.F. decided to curtail the remainder of their studying for that night and
went to the bathroom to get ready for bed.
72.
After washing up, Plaintiff and M.F. each got into their respective beds. Plaintiff
left as much space as possible between himself and Jane Doe, as he did not want to wake her and
still felt somewhat uncomfortable that she had gotten into his bed, without his permission, and
fallen asleep.
73.
A few minutes later, Jane Doe woke up and asked Plaintiff are we going to
cuddle or not? which surprised Plaintiff given the previous platonic nature of their relationship.
Nonetheless, Plaintiff acquiesced and began to spoon with Jane Does backside to his front.
74.
Plaintiff and Jane Doe began a conversation that lasted approximately thirty
minutes, the content of which included mutual friends, past high school experiences and Jane
Does sexual history. Jane Doe indicated that she had engaged in casual sexual activity with
several of her male friends in the past and shared that she had slept with eight or nine guys. When
Plaintiff asked her why, she replied I love dick.
75.
Jane Doe also discussed how she views sex very liberally and has had sex with
two guy friends from home.

76.
At that point, Plaintiff playfully suggested that maybe he could be one of those
male friends by receiving digital masturbation from Jane Doe. She instead suggested that she
perform oral sex because hand jobs [were] awkward. Upon Plaintiffs agreement, Jane Doe
unexpectedly stated well if I blow you, then I have to have sex with you. Plaintiff replied okay,
thats fine.
77.
Jane Doe proceeded to remove Plaintiffs shorts and perform oral sex on him. As
M.F. was asleep in his own bed, Jane Doe and Plaintiff tried to keep as quiet as possible. After
15
approximately five minutes, Jane Doe asked if Plaintiff had a condom, to which he responded
affirmatively and got out of bed to retrieve one from his desk.
78.
As Plaintiff returned to bed, Jane Doe was in the process of removing her own
underwear and shirt. After a discussion about what position to use, Plaintiff lay down and Jane
Doe got on top of him, using her hand to insert his penis into her vagina.
79.
Thereafter, they proceeded to engage in sexual intercourse for about fifteen
minutes, until M.F. awoke at approximately 3:15 a.m. Plaintiff and Jane Doe stopped having
intercourse while M.F. was awake and waited quietly until he got back into bed and fell asleep
again. Plaintiff and Jane Doe then proceeded to have intercourse for the second time, for another
fifteen to twenty minutes before M.F. again awoke and subsequently left the room. Once alone in
the bedroom, Plaintiff put on music and he and Jane Doe resumed having intercourse, for the third
time.
80.
At no time during the sexual encounter did Jane Doe express in words or actions
that she did not consent to the sexual activity. In fact, she initiated most of the contact and was an
active and willing participant throughout the entire evening.
81.
Shortly thereafter, Jane Doe remarked that she was getting tired, so they ceased
the sexual activity and had a brief conversation about how late it was and the troubling fact that
Plaintiff had a midterm the following day. Plaintiff decided to take a shower, at which time Jane
Doe left, presumably to return to her own room. When Plaintiff realized that Jane Doe had left his
room, he went down to the lobby of his dormitory building for additional study time before his
midterm in a couple of hours.
82.
At approximately 5:45 a.m., Plaintiff returned to his room to get additional study
materials and found that M.F. had returned. They had a discussion about Plaintiffs sexual activity
16
during the early morning hours prior to the midterm. Plaintiff apologized for keeping him up so
late that night and also thanked him for leaving the room as the sexual encounter took place.
83.
Plaintiff saw Jane Doe the following morning and brought a coffee over to where
she was sitting, a kind gesture in recognition of the fact that they had stayed up so late the previous
night.
84.
Plaintiff and Jane Doe remained friendly throughout the rest of the academic
quarter and hung out together several different times in various social settings. Jane Doe never
gave any indication that she had not consented to the sexual contact with Plaintiff.
III.
The Investigation
85.
More than six months later, on April 15, 2015, upon learning of the events of
October 8-9, 2014, Jane Does boyfriend R.H. submitted a complaint of sexual misconduct on
behalf of Jane Doe to Graduate Resident Director Jeffrey Mariano (Mr. Mariano).
86.
Thereafter, on April 30, 2015, Jane Doe filed a complaint of non-consensual
sexual contact with the OEO. Upon information and belief, Jane Doe was persuaded by her
boyfriend to file the complaint.
87.
Defendants Grove and Butler met with Jane Doe on May 1, 2015 for an
informational meeting, and subsequently interviewed her on May 5, 2015.

88.
On May 12, 2015, Plaintiff received written notice that Defendants Grove and
Butler were reviewing an incident in which Plaintiff may have violated the Universitys policy on
Non-Consensual Sexual Contact (Notice of Pending Review). While the Notice of Pending
Review only identified a potential violation of the policy against Non-Consensual Sexual Contact,
Defendant Butler also cited to the section of the Procedures concerning Sexual Exploitation.
17
89.
Defendant Butler requested an informational meeting with Plaintiff, which was
scheduled for May 20, 2015. At that time, Defendant Butler and Defendant Grove described the
procedures for Plaintiffs upcoming interview.
90.
Plaintiff was formally interviewed by Defendant Grove and Defendant Butler on
May 27, 2015. As Plaintiff was not provided a copy of Jane Does complaint, he was forced to
participate in the investigation process and begin formulating his defense to the charges, without
being notified of the exact allegations against him.
91.
Upon information and belief, Jane Doe appeared for a second interview on May
29, 2015.
92.
After the spring semester had concluded, on June 15, 2015, Plaintiff participated
in a telephone interview with Defendant Grove and Defendant Butler, during which they
aggressively questioned him about Jane Does allegations. Thereafter, on June 21, 2015, Plaintiff
submitted a supplemental statement to clarify his testimony and the facts at issue.
93.
Notably, the finalized Preliminary Report dated June 26, 2015 referenced for the
first time Plaintiffs alleged use of coercion, an allegation that Plaintiff was not made aware of
prior to being interviewed, or at any other time during the investigation process.
While the Preliminary Report notes that the active investigation concluded on
94.
June 16, 2015, Plaintiff did not receive notice of a determination until July 15, 2015, more than
one month later.
95.
On July 15, 2015, Plaintiff received the Decision of the OEO, which found him
responsible for Non-Consensual Sexual Contact in violation of the Universitys policies.

University of Denvers Procedures define Non-Consensual Sexual Contact as:
Any intentional sexual touching, however slight, with any
object, by any individual upon any individual that is without
18
consent; by force, or coercion, or threat; or where that

individual is incapacitated.
96.
The Procedures define Consent in relevant part as follows:

Individuals who choose to engage in sexual activity of any
type with another individual must first obtain clear consent.
Consent must be clear, knowing, and voluntary. Consent is
active, not passive. Consent can be given by words or actions
or as long as those words or actions create mutually
understandable clear permission regarding willingness to
engage in (and the conditions of) sexual activity.
97.
The Procedures define Coercion as:

Coercion is unreasonable and persistent pressure to compel
another individual to initiate or continue sexual activity
against an individuals will. Coercive behavior differs from
seductive behavior based on the type of pressure someone
uses to get consent from another. When someone makes
clear that they do not want to engage in sexual contact, that
they want to stop, or that they do not want to go past a certain
point of sexual interaction, continued pressure beyond that
point can be coercive. A persons words or conduct are
sufficient to constitute coercion if they wrongfully impair
another individuals freedom of will and ability to choose
whether or not to engage in sexual activity. Coercion can
include a wide range of behaviors, including intimidation,
manipulation, threats and blackmail. Examples of coercion
include threatening to disclose another individuals private
sexual information related to sexual orientation, gender
identity, or gender expression and threatening to harm
oneself if the other party does not engage in the sexual
activity.
98.
Plaintiff was advised that an Outcome Council would thereafter be convened in
order to determinate appropriate sanctions.

99.
On Friday, July 17, 2015, Plaintiff received written notification from Defendant
Olson that the Outcome Council would convene on Monday, July 20, 2015. Defendant Olson
identified the members assigned to the Outcome Council, which included herself.
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100.
Despite the Procedures provision requiring that a respondent be given two
business days to object to any members participation on the Outcome Council, Defendant Olson
afforded Plaintiff a mere 24 hours, during a weekend, to submit any objections. Further hindering
his ability to comply with the Universitys unreasonable timelines, the notice did not include a
designated Associate Provost for Plaintiff to contact with his objections.
101.
The Outcome Council convened on July 20, 2015. Thereafter, on July 22, 2015,
Defendant Olson issued a Dismissal Letter stating the Outcome Council determined it is in the
Universitys best interest to remove the student respondent, [Plaintiff] from the campus community
due to the nature and severity of [Plaintiffs] actions and in an effort to protect the community.
As a result, the Outcome Council assessed a sanction of permanent dismissal from the University
and imposed a trespass order, banning him from all University premises.
102.
Not only do Denvers Procedures afford an inadequate amount of time to prepare
a comprehensive appeal, but Denver also violated its Procedures when the Dismissal Letter failed
to identify the appellate officer to whom an appeal was to be submitted within five (5) calendar
days.
103.
Further, despite the Procedures requirements that once the Outcome Council has
rendered a finding, a member of the Outcome Council will offer both parties the opportunity to
meet and share the decision made, Defendant Olson never provided Plaintiff the opportunity to
meet her in person.
104.
Notwithstanding, on July 27, 2015, Plaintiff submitted an appeal to Defendant
Olson based on the following grounds: (i) the existence of a procedural error(s) so substantial that
it would likely alter the investigative findings and ultimate outcomes, and (ii) presentation of new
20
and significant evidence which was not reasonably available at the time of the initial investigation
and would likely alter the investigative findings and ultimate outcomes; specifically:
Defendants failed to include information provided by

Plaintiff in the Report;
Failed to properly investigate and collect all available

evidence;
Failed to contact any witnesses that would refute or

contradict Jane Does version of events;
Failed to consider evidence tending to diminish Jane Does

credibility;
Overlooked the inconsistencies in Jane Does statements;

and
Since the investigation, Plaintiff and his family had

determined that he likely suffers from Aspergers Syndrome,
a disability that could have significantly altered the
investigation and findings. For instance, the investigators
may not have been able to properly judge Plaintiffs
credibility and may have misunderstood his demeanor and
testimony.
105.
Notwithstanding the blatant procedural errors exhibited throughout the
investigation process, Defendants denied Plaintiffs appeal and upheld the severe and unjust
penalty of expulsion.
IV.
Failure to Conduct a Timely Investigation

106.
The University of Denvers Procedures stipulate that in compliance with Title IX
requirements, the University will make every effort to resolve all reports within sixty (60)
calendar days. The sixty day requirement may be extended for good cause as necessary, in
which case, [a]ny extension of the timeframes, and the reason for the extension, will be shared
with the parties in writing.
21
107.
Notwithstanding, the University did not resolve the complaint for seventy-nine
(79) days. Yet, it failed to notify Plaintiff in writing of either the extension or provide an
explanation of the good cause basis for such extension, until prompted by Plaintiff to provide one.
108.
The Procedures similarly dictate that the University will seek to complete the
investigation within forty-five (45) calendar days of receiving the report, again with an option to
extend the time frame for good cause with written notice to the parties of the delay and the reason
for the delay.
109.
Nonetheless, although the OEO received the incident report on April 30, 2015,
the Preliminary Report was not delivered until June 26, 2015, 57 days later. Once again, the
University failed to provide Plaintiff with written notice of the extension, or the reason for the
extension. The impact of a delay at this time of year impeded Plaintiffs right to a prompt and
thorough investigation.
110.
Further, the Procedures provide that complainants are strongly encouraged to file
a report within a maximum of 180 days of the alleged incident in order to maximize the
Universitys ability to respond promptly and effectively (emphasis added). However, while the
alleged Incident occurred on October 9, 2014, the investigative report indicated that the OEO did
not learn of the complaint until April 30, 2015, 204 days after the Incident, far exceeding the 180
days suggested by the Universitys Procedures.
111.
Finally, the Preliminary Report states that the active investigation concluded
on June 16, 2015. Yet, Plaintiff did not receive notice of a Decision until July 15, 2015, one full
month later. Evidently, although Defendant Butler had been the fact finder throughout the
investigation, and was solely responsible for making the Decision, he was not able to set forth a
determination for nearly thirty days after concluding his investigation.
22
112.
Significantly, while Defendants violated University of Denvers own policies and
procedures, they nonetheless required Plaintiff to comply with unreasonable and arbitrary
timeframes, in violation of his right to fair process.
113.
Specifically, Defendant Butler contacted Plaintiff on June 2, 2015 at 9:55 a.m.
immediately before a 10:00 a.m. final examination to request that he appear at an interview later
that same day. The failure to act with any sense of urgency and/or expedite the investigation
process prior to the conclusion of the spring semester further demonstrated the lack of experience
and training on the part of the primary investigator.
114.
Although Plaintiff had already booked a flight to return home that afternoon,
Defendant Butler insisted that Plaintiff attend an in-person meeting before his departure. Yet, even
without proper notification of the urgent circumstances for this sudden meeting, Plaintiff
cooperated fully by contacting his advisor, who also could not accommodate such short notice.
115.
The interview was eventually conducted via telephone on June 15, 2015. During
the call, Defendant Butler and Defendant Grove questioned Plaintiff aggressively and accused him
of providing Adderall to Plaintiff, a false claim entirely unrelated to the conduct at issue.
116.
Defendant Butlers insistence upon an unscheduled interview, followed by the
delay of issuance of the final Report is further evidence of the mishandling of Plaintiffs matter by
an inexperienced and unsupervised investigator.
117.
Based on the foregoing, Defendants decision to pursue the untimely complaint,
without providing any written notification for the extension, while simultaneously requiring
Plaintiff to comply with unreasonable and arbitrary timeframes was a violation of the Universitys
policies and Plaintiffs right to fair process.
23
V.
Failure to Conduct a Thorough and Impartial Investigation

118.
The Universitys Office of Equal Opportunity Procedures 2014-2015 (the
Procedures) provides that [t]he investigation is designed to provide a fair and reliable gathering
of the facts. The investigation will be thorough, impartial and fair, and all individuals will be
treated with appropriate sensitivity and respect.
119.
Notwithstanding, University of Denver performed a one sided and biased
investigation in favor of Jane Does allegations of sexual misconduct.

120.
The investigation was replete with procedural errors including, but not limited to:
the failure to properly investigate and collect all available

evidence, including statements from eyewitnesses and Jane
Does friends;
the failure to include information provided by Plaintiff in the

investigative Report, including evidence demonstrating he
and Jane Doe did not cease contact subsequent to the
Incident;
the complete disregard of contradictions and inconsistencies

in Jane Does statements when making assessments of
credibility; and
a material misrepresentation of the charges brought against

Plaintiff.
121.
The Universitys failure to adhere to proper investigatory protocol as required by
Title IX and its own self-imposed Procedures resulted in a flawed investigation that led to an
erroneous Decision.
122.
The Universitys Procedures employ a single investigator model, granting
significant discretion to the investigators, and thereby allowing them to direct the ultimate outcome
of the investigation. The Procedures state, [w]here a sufficient informational foundation exists,
the investigator, in consultation with the Title IX Coordinator, will assess the relevance, form, and
24
reliability of the information (hearsay will not be permitted) and determine if it is appropriate for
inclusion in the written investigation report. Thus, the investigator is granted authority to
subjectively choose what evidence and information to disclose in the investigation Report.
Defendants Grove and Butler evidently took advantage of this discretion as the selective inclusion
and exclusion of information resulted in a Report that was neither thorough nor objective.
123.
Furthermore, Defendants Grove and Butler performed a biased and subjective
investigation when they selectively interviewed hearsay witnesses favorable to Jane Doe, while
overlooking and/or failing to interview witnesses identified by Plaintiff who had direct knowledge
of the Incident. For instance:
Defendant Butler allegedly was unsuccessful in scheduling

a meeting with C.Z., one of the three individuals who
witnessed Plaintiff and Jane Doe together during the
majority of the subject evening.
Defendant Butler failed to interview any of the witnesses

who allegedly observed Jane Does level of intoxication as
she got off the elevator on the third floor of the residence
halls, immediately prior to the Incident.
Jane Does boyfriend, R.H. stated Jane Doe first told her two
friends about the alleged Incident, with one friend identified
as fellow student, M.G. Jane Doe states in her interview with
the investigator the importance she placed on this
conversation with her friend. Notwithstanding, Defendant
Butler never interviewed M.G., or any other friends of Jane
Doe.
Contrarily, while Defendant Butler failed to interview

witnesses with direct knowledge relevant to the Incident, he
did interview R.H., the boyfriend of Jane Doe, despite the
fact that he was not present on the subject evening and his
only knowledge of the Incident came in the form of hearsay
statements made by Jane Doe herself several months later.
Defendant Butler wholly disregarded the statement of M.F.,

the one eyewitness to the Incident itself. Specifically,
Defendant Butler failed to consider that at the time of the
25
Incident, Jane Doe neither expressed a lack of consent, nor

appealed to M.F. for assistance, claiming instead that she did
not even know he was present in the room. Given M.F. had
the ability to refute Jane Does claims, Defendant Butler
dismissed M.F.s statement and instead accepted Jane Does
allegations at face value.
124.
Significantly, R.H. was the individual who first decided to report the Incident,
approximately six months after the fact. Following R.H.s allegations against Plaintiff, Jane Doe
was not interviewed alone, as rudimentary investigative procedure would require, but rather was
interviewed in the presence of R.H. Certainly, Jane Doe may have adjusted her account of the
events when recounting the Incident in the presence of her current boyfriend. Thus, Defendants
failed to ensure that basic investigative procedures were followed when Jane Doe first made her
allegations against Plaintiff. The presence of R.H. during Jane Does initial interview was
undoubtedly prejudicial to Plaintiff, yet this fact was given no consideration in the Report.
125.
Additionally, the Decision letter included notification of Plaintiffs right to
submit an Impact Statement for consideration by the Outcome Council: Impact Statements should
be typed and include information limited to how this matter has affected you directly. Should you
choose to submit an Impact Statement, you will receive instructions on how it should be submitted
as previously mentioned.
Yet, Plaintiff was never provided with any further instructions
regarding the Impact Statement.

126.
Moreover, the Procedures state, If a Complainant or Respondent meets with the
Outcome Council, they may be accompanied by an Advisor and a Support Person. Yet, Plaintiff
was never apprised of his right to attend the Outcome Council meeting, nor was his advisor. Given
less than 72 hours notice of when the Outcome Council would convene, Plaintiff was denied the
right to appear before the Council and the opportunity to provide an Impact Statement.
26
127.
Notably, during the investigation period, May 5, 2015 to July 15, 2015, the
Universitys OEO underwent a major upheaval in personnel. Defendant Grove, Director of the
Office of Equal Opportunity and Title IX Coordinator, who participated in the first and second
interviews of Plaintiff, resigned and left the University on July 2, 2015. Defendant Groves
resignation occurred two weeks before the final Decision was issued and six weeks prior to the
denial of Plaintiffs appeal, effectively eliminating her from the process.
128.
According to the Procedures, the Title IX Coordinator is charged with the
following responsibilities:
Oversight of the investigation and resolution of all reports of

prohibited conduct under the Procedures involving students,
staff and faculty;
Ensuring consistent application of the policy to all

individuals and allow the University to respond promptly
and equitably;
To conduct an initial assessment of any Title IX reports and

determine the appropriate manner of resolution;
Monitoring full compliance with all procedural

requirements, record keeping and timeframes outlined in the
Procedures; and
Coordination of training, prevention and education efforts

and annual reviews of climate and culture.
129.
Given the numerous and substantial responsibilities held by Defendant Grove,
she served as the central figure in Plaintiffs investigation prior to her resignation from the
University.
130.
However, a new Title IX coordinator, Defendant McAllister, began her
employment at University of Denver on June 1, 2015, four weeks after the official start of the
investigation, and after the interviews with Jane Doe and the witnesses had already been
27
concluded. Thus, Defendant McAllister was not present during the investigatory phase and
therefore could neither oversee the process nor supervise Defendant Butler.
131.
Accordingly, there was no continuous oversight of the investigation by one
specific university administrator; rather, the fate of Plaintiff was entrusted to an inexperienced staff
member, Defendant Butler, who was still within the orientation period of his employment.
132.
The understaffed and inexperienced OEO mismanaged the investigation while
Plaintiff fell through the cracks of a system under repair. The magnitude and aggregate number of
procedural errors throughout the proceedings undermined Plaintiffs right to fair process.
133.
Accordingly, due to an understaffed OEO, a lack of experience and training on
the part of the investigator and a variety of procedural errors, Defendants failed to perform a
thorough and impartial investigation process.
VI.
Failure to provide proper notice of the charges.

134.
The Universitys Procedures list over a dozen bullet points detailing how the
University will make its initial assessment of the facts of a reported complaint. Notably absent is
any mention of how the respondent will be notified of the impending investigation once a course
of action has been decided.
135.
During the first week of May 2015, Plaintiff was called to the office of Defendant
Olson who informed that he would be investigated about an issue regarding the Office of Equal
Opportunity that had been filed. He was not provided any information about the specific charges
brought against him by Jane Doe.
136.
Despite the foregoing, Plaintiff had already been contacted by Campus Safety
officers regarding a No Contact Order (NCO) requested by Jane Doe on April 24, 2015, prior to
Plaintiff receiving notification of the exact charges against him.
28
137.
Three Campus Safety officers went to the dorm room of Plaintiff at the hours of
18:19 and 21:20 to deliver a verbal NCO. Notwithstanding that the Universitys own Procedures
require an NCO be provided in written form by the Office of Student Conduct for incidents
involving a Title IX investigation, a written NCO was never delivered to Plaintiff at any time
during the investigation process.
138.
Further, University of Denver policy states, If during the Title IX investigation
a person wishes to seek a no-contact order against the responding party, Student Conduct will issue
the orders to both parties. However, Plaintiff was never notified of his right to request an NCO
against Jane Doe. Indisputably, the differential treatment afforded to Plaintiff as the male accused
was a violation of Title IX as well as Plaintiffs right to fair process.
139.
Furthermore, on May 12, 2015, Plaintiff received a Notice of Pending Review
from Defendant Butler stating that an accusation has been filed that you have allegedly committed
the following prohibited conduct: Non-Consensual Sexual Contact, which is identified as the
Universitys Discrimination/Equal Opportunity Policy Section 3.10.010. Defendant Butler
included a link to the corresponding policies noting see Sections V.B 4 & 5 respectively.
However, section V.B 5. discusses Sexual Exploitation, a charge that was not reported by Jane
Doe or otherwise identified by the University as a potential violation.
140.
Thus, Plaintiff was misinformed of the charges against him, namely, Non-
Consensual Sexual Contact and Sexual Exploitation, prior to participating in the investigatory
interviews and submitting his written statements.
141.
This substantial procedural error deprived Plaintiff of the right to fully defend
himself, as he was not properly made aware of the exact charges against him before participating
in the investigation process.
29
142.
Incredibly, on June 26, 2015, after the investigation had been fully completed,
Plaintiff received the Report which indicated Jane Doe alleged he had violated Universitys Equal
Opportunity policies on non-consensual sexual contact and specifically the provision on coercion.
(emphasis added). At no time was Plaintiff advised that he was also being investigated for the use
of coercion during the Incident. This addition of a new allegation after the entire investigation
had been concluded, and after he had already participated in two interviews and submitted written
statements, deprived Plaintiff of the right to be notified of all charges against him and, thereby, the
opportunity to be heard on these charges.
143.
Finally, the Outcome Council Notice sent to Plaintiff on July 17, 2015 advised
that he was found responsible for violating the following provision:

Violation of Equal Opportunity Policy: Specifically, as it relates to
Non-Consensual Sexual Contact. Please see the University Equal
Opportunity Policies in full for further details.
144.
Inexplicably, the Outcome Council Notice did not reference coercion, a charge
identified in the Report, nor did it reference sexual exploitation, a charge identified in the
original Notice of Pending Review. Effectively, Plaintiff was deprived of the opportunity to fully
and adequately defend himself when Defendants continually modified the charges against him
throughout the investigation. Based on the foregoing, Plaintiff was not provided sufficient notice
of the exact nature of the charges against him, in violation of his right to fair process.
VII.
The Determination Lacks Sufficient Detail as to the

Investigators Factual Findings.
145.
The failure to set forth a detailed factual finding in a colleges disciplinary
determination is a substantial failure of due process, as it forecloses the accused students ability
30
to effectively challenge the determination in administrative appeals and in the courts and to ensure
the decision was based on evidence in the record.
146.
Here, the Decision Letter dated July 15, 2015 consisted of a blanket statement:
The Investigators find it more likely than not that
[Plaintiffs] actions on the night of October 9, 2014 resulted
in non-consensual sexual contact with [Jane Doe] by means
of coercion in violation of the Universitys Equal
Opportunity policies.
147.
Defendant Butler failed to provide any explanation as to what specific details,
facts, or statements led to the Decision. The Decision issued by Defendant Butler therefore lacks
the requisite detailed factual findings to support the Decision, including how the evidence stated
in the Report was used and weighted to reach the conclusion, as required by preponderance of the
evidence standard.
148.
Furthermore, despite the severity of the Sanction, the University failed to provide
any explanation whatsoever for its factual findings, in violation of Plaintiffs right to fair process.
149.
Consequently, the failure of the University to provide a statement detailing the
factual findings and the evidence relied upon by the investigator in reaching the Decision precluded
Plaintiff from effectively challenging the outcome and Sanction.
150.
Finally, the Dismissal letter dated July 22, 2015 included information on the
Appeal Process. Plaintiff was instructed to submit a written statement within 5 days to the
Appellate Officer; however, the Appellate Officer was not identified.
151.
Further, Plaintiff was again given an unreasonable deadline, scheduled over a
weekend, effectively prohibiting him access to university administration to resolve these issues.
31
152.
Certainly, the numerous omissions and lack of detailed findings included within
the Decision and the Dismissal letter usurped any meaningful opportunity for Plaintiff to appeal,
in violation of his rights to fair process.
VIII. Gender Bias Against Plaintiff as the Male Accused
153.
Pursuant to the U.S. Department of Education Office of Civil Rights Guidelines
and the University of Denvers own self-imposed Procedures, Defendants were required to conduct
an impartial and unbiased investigation process.
154.
Upon information and belief, Defendants are knowledgeable of the fact that
complaints of sexual misconduct are disproportionately lodged by females against males.

155.
Upon information and belief, Defendants have recognized the increased pressure
from the United States government to aggressively discipline male students accused of sexual
misconduct.
156.
Defendants disparate and discriminatory treatment of Plaintiff was evident
throughout the investigation and adjudication process when they accepted Jane Does version of
the events as more credible than Plaintiffs despite the lack of any reliable or corroborating
evidence.
157.
The Universitys investigative process demonstrated a clear gender bias which
resulted in a Decision and Sanction that did not afford Plaintiff the requisite presumption of
innocence required by a preponderance of the evidence standard.
158.
The University demonstrated a presumption of guilt against Plaintiff as the male
accused of sexual misconduct when it overlooked potentially exculpatory evidence, ignored Jane
Does contradictory and inconsistent statements and made baseless assessments of credibility. For
instance:
32
Jane Doe alleged that she ceased contact with Plaintiff

following the Incident. However, Plaintiff identified at least
four individuals who had seen Plaintiff with Jane Doe in a
social setting after October 9, 2014. Yet, Defendant Butler
failed to contact or interview any of these witnesses, or even
reference them in the Report. Moreover, Plaintiff advised he
had phone records and text message records demonstrating
that Jane Doe continued to have contact with him subsequent
to October 9, 2014; however, Defendant Butler failed to
request such potentially exculpatory records.
Jane Doe alleged that when she got off the elevator on the
third floor of the residence halls, a resident of the third floor
named Cameron saw her intoxicated, among other
witnesses. While Defendant Butler went to great lengths to
obtain the print records for Plaintiffs floor printer to find out
the exact time he printed a document on the subject evening
and contacted his professor to confirm that Plaintiff did in
fact have an exam the following morning, he did not
investigate or try to locate Cameron, an eyewitness who
could allegedly testify to Jane Does state of intoxication. In
fact, a thorough investigation would have revealed that there
was no Cameron living on the third floor of the residence
halls.
Defendant Butler also failed to investigate the prior sexual

experience of Plaintiff in reaching his conclusions. In fact,
Plaintiff lost his virginity during the sexual encounter in
question. This fact is highly inconsistent with the version of
events as described by Jane Doe where Plaintiff is sexually
aggressive and knowledgeable. Notably, while the
Procedures provide that [i]n general, a Complainants prior
sexual history is not relevant and will not be admitted as
evidence during an investigation, the Procedures do not
address the sexual history of the respondent, suggesting that
indeed, the respondents prior sexual history is very relevant.
Thus, Defendant Butler failed to perform a thorough
investigation when he did not consider Plaintiffs prior
sexual experience.
Defendant Butler failed to investigate Jane Does social

media accounts, which reveal multiple posts of her smoking
marijuana. The failure to consider Jane Does social media
presence was significant as her profiles suggest she is in fact
a regular user of the drug, with presumably a moderate
tolerance level, sharply contrasting her claims that she
33
became highly intoxicated on the subject evening. Further,

Jane Does lack of candor about her level of marijuana use
should have been viewed as directly relevant to her
credibility given the nature of the investigation.
159.
Jane Does initial complaint reported to Mr. Mariano

claimed that Plaintiff ushered her into a house party offcampus and assaulted her. However, Jane Doe provided an
entirely different account of the Incident to Defendant
Butler. Yet, Defendant Butler failed to consider this lack of
consistency in establishing Jane Does credibility,
evidencing a clear bias against Plaintiff as the male accused.
Evidently, Defendant Butler was not a neutral and unbiased fact finder, but
discriminated against Plaintiff throughout the process by failing to undertake a thorough and
impartial investigation.
160.
Defendant Butler made every effort to seek out evidence in support of Jane Does
allegations while overlooking any evidence corroborating Plaintiffs account. The outright
acceptance of Jane Does version of the events, while ignoring the contradictory evidence and
testimony, can only be attributed to a bias against Plaintiff as the male accused.
161.
Moreover, University of Denvers policies and procedures are set up to
disproportionately affect the male student population as a result of the higher incidence of female
complainants of sexual misconduct against male complainants of sexual misconduct.
162.
For instance, the Procedures provide considerable accommodations to the
complainant, who is habitually female, that are not afforded to respondents, including:
Notify the complainant of the right to make a report (or

decline to make a report) with law enforcement if the
conduct is criminal in nature, and if requested, assist them
with notifying law enforcement;
Notify complainant of the availability of medical treatment

to address physical or mental health concerns and preserve
evidence;
34
Provide complainant with information about on and off

campus resources and the range of interim measures;
Discuss complainants expressed preference for manner of

resolution;
Explain the Universitys policy prohibiting retaliation;
Explain the role of a support person or advisor.
163.
Additionally, the Procedures provide amnesty to complainants who report sexual
assault from being charged for policy violations related to the consumption of alcohol or other
drugs; however, no such accommodation is provided to respondents, who are typically male.
164.
Furthermore, the Procedures explicitly advise that violations of the non-
consensual sexual contact provision of these Procedures typically result in a dismissal. (emphasis
added). As such, respondents, who are disproportionately male, charged with violating the nonconsensual sexual contact provision will categorically be dismissed from the University.
165.
Finally, the interviews of the parties were conducted in such a manner that
Plaintiff was presumed guilty from the outset and forced to prove his innocence. Specifically,
Defendants interviewed Jane Doe and accepted her version of the events as true prior to even
speaking with Plaintiff. Subsequently, the interview of Plaintiff consisted solely of follow up
questions to Jane Does false statements. In this way, Plaintiff was denied the opportunity to fully
present his account of the events and was instead charged with the task of disproving Jane Does
allegations.
166.
Based on the foregoing, Defendants evidenced a clear gender bias against
Plaintiff as the male accused throughout the investigation and hearing process, in violation of Title
IX and his rights to fair process.
35
IX.
Failure to Abide by the Requisite Preponderance of the Evidence Standard

167.
The U.S. Department of Education Office of Civil Rights and the Universitys
Procedures require that a preponderance of the evidence standard be used to evaluate allegations
of sexual misconduct.
168.
The Procedures defines preponderance of the evidence as: The standard of proof
that the Office of Equal Opportunity applies to its investigations. An allegation is proven by a
preponderance of the evidence if, based on the information provided, it is more likely to have
occurred than not to have occurred.
169.
The preponderance of the evidence standard does not equate to judging the
accused as guilty until proven innocent. In fact, nowhere in the Department of Educations
guidelines or University of Denvers policies is such a standard referenced. However, Defendants
conducted an investigation which failed to afford Plaintiff the requisite presumption of innocence.
170.
Specifically, Defendants improperly placed the burden of proof on Plaintiff to
establish that Jane Doe had consented to the alleged sexual activity, when it accepted at face value
Jane Does allegations.
171.
Upon accepting Jane Does uncorroborated account of the events, the Defendants
discriminated against Plaintiff, based solely on his gender; the only corroboration for Jane Does
version came from witnesses whose knowledge of the Incident originated from Jane Doe herself.
172.
A fair reading of the evidence reveals that Jane Does version of events lacked
any reliability; a presumption of guilt against Plaintiff was therefore required for a finding of
responsibility to be reached:
Jane Doe alleged that she became physically ill from

drinking a lot of alcohol and smoking marijuana and claimed
that she threw up at least four times in Plaintiffs room. Yet,
neither Plaintiff nor M.F. had any sense that Jane Doe or the
36
other guests had even been drinking, and neither recalled

Jane Doe ever throwing up in their room.
Despite Jane Does claims that she was unable to consent

due to intoxication, both parties statements reveal that
approximately three hours had passed between the time Jane
Doe first arrived at Plaintiffs room and the time that they
began to engage in sexual contact. During this three hour
period, Jane Doe did not consume any alcohol. Thus, even
if Jane Doe had become intoxicated earlier in the day, it is
highly likely that her blood alcohol content had decreased
significantly by 1:30 a.m., negating any claims that she was
too intoxicated to consent.
Jane Doe claimed that Plaintiff was drinking gin and taking
shots from the bottle while they were in his room. However,
both Plaintiff and M.F. testified that they were in fact
studying for a midterm examination and did not keep any
alcohol in their room. Further, neither one was drinking as
they were both stressed about their first college engineering
midterm examination the following day.
Jane Doe testified that an individual named Cameron who

resided on the third floor saw her intoxicated and thought it
was hilarious. However, there was no one named Cameron
who lived on the third floor and Defendant Butler did not
seek to identify the other witnesses who allegedly saw Jane
Doe in her intoxicated state.
Jane Doe alleged that M.F. never got up while she and
Plaintiff were having sex, and claims she did not even know
he was there. However, both Plaintiff and M.F. stated that
M.F. woke up and left the room.
Jane Doe stated that she never hung out with Plaintiff after
the subject evening; however, Plaintiff identified at least
four witnesses who could refute this claim.
Jane Doe claimed she consumed seven shots of hard liquor

prior to going to Plaintiffs room; J.M. stated she had two
or three beers, at most.
Jane Does two statements, to Defendant Butler and to Mr.

Mariano, were entirely inconsistent. Mr. Mariano stated that
Jane Doe had reported she couldnt remember much; in
comparison to the highly detailed recollection of the Incident
37
recited to Defendant Butler. Further, while Jane Doe

reported to Defendant Butler that the Incident occurred in
Plaintiffs dorm room, Mr. Mariano reported Jane Doe
definitely said that it was a house party off campus. These
two versions of the event are entirely irreconcilable and
should have been given substantial weight in making
assessments as to each partys credibility.
173.
Notably, the primary witness favorable to Jane Doe was her boyfriend, R.H., an
individual who was not present on the night in question and did not learn of the events until several
months later. Thus, R.H.s testimony was based purely on hearsay and should have been
disregarded.
174.
Moreover, Jane Doe attempted to preemptively diminish Plaintiffs credibility by
stating M.F. would say whatever he thinks will save [Plaintiffs] ass, and asserting that Plaintiffs
reference to bringing Jane Doe coffee the morning after the Incident is actually a reference to him
giving her Adderall. The foregoing were clearly irrelevant and highly inflammatory statements
intended purely to harm Plaintiffs credibility and character, and should have been outright omitted
by Defendant Butler. Nevertheless, Defendant Butler included these statements in the Preliminary
Report.
175.
Accordingly, Defendants failed to utilize the requisite preponderance of the
evidence standard when they found Jane Doe to be more credible despite the lack of any
corroborating evidence, overlooked any evidence tending to support Plaintiff, including a direct
eye witness statement, while seeking out evidence favorable to Jane Doe and presumed Plaintiff
guilty from the outset. Defendants Grove and Butler conducted an investigation calculated to reach
the foregone conclusion that Plaintiff was guilty of the misconduct alleged.
38
AS AND FOR A FIRST CAUSE OF ACTION

Violation of Title IX of the Education Amendments of 1972
176.
Plaintiff repeats and realleges each and every allegation hereinabove as if fully
set forth herein.

177.
Title IX of the Education Amendments of 1972 provides, in relevant part, that:
No person in the United States shall, on the basis of sex, be excluded from participation in, be
denied the benefits of, or be subjected to discrimination under any education program or activity
receiving Federal financial assistance.
178.
University of Denvers Procedures provide: The University of Denver is
committed to establishing and maintaining a safe and nondiscriminatory educational environment

in which all individuals are treated with respect and dignity and [p]ursuant to Title IX of the
Education Amendments of 1972, the University of Denver does not discriminate on the basis of
sex in its educational, extracurricular, athletic, or other programs or in the context of employment.
179.
Title IX of the Education Amendments of 1972 applies to an entire school or
institution if any part of that school receives federal funds; hence, athletic programs are subject to
Title IX of the Education Amendments of 1972, even though there is very little direct federal
funding of school sports.
180.
Upon information and belief, Defendant University of Denver receives federal
funding for research and development.

181.
Both the Department of Education and the Department of Justice have
promulgated regulations under Title IX that require a school to adopt and publish grievance
procedures providing for the prompt and equitable resolution of student... complaints alleging any
action which would be prohibited by Title IX or regulations thereunder. 34 C.F.R. 106.8(b)
(Dept of Education); 28 C.F.R. 54.135(b) (Dept of Justice) (emphasis added). Such prohibited
39
actions include all forms of sexual harassment, including sexual intercourse, sexual assault, and
rape.2
182.
The procedures adopted by a school covered by Title IX must not only ensure
the Title IX rights of the complainant, but must also [accord] due process to both parties
involved...3
183.
The prompt and equitable procedures that a school must implement to accord
due process to both parties involved must include, at a minimum:

Notice . . . of the procedure, including where complaints
may be filed;
Application of the procedure to complaints alleging
[sexual] harassment...;
Adequate, reliable, and impartial investigation of
complaints, including the opportunity to present witnesses
and other evidence;
Designated and reasonably prompt timeframes for the
major stages of the complaint process; and
Notice to the parties of the outcome of the complaint......4
184.
A school also has an obligation under Title IX to make sure that all employees
involved in the conduct of the procedures have adequate training as to what conduct constitutes
sexual harassment, which includes alleged sexual assaults. 5
185.
Based on the foregoing, supra, at 85-175, Defendant University of Denver
deprived Plaintiff, on the basis of his sex, of his rights to due process and equal protection through
See generally U.S. Dept of Education, Office for Civil Rights, Revised Sexual Harassment Guidance:
Harassment of Students by School Employees, Other Students, or Third Parties -- Title IX (2001) at 19-20,
21 & nn.98-101.
3 Id. at 22 (emphasis added).
4 Id. at 20.
5 Id. at 21.
40
the improper administration of and/or the existence, in its current state, of Defendant University
of Denvers guidelines and regulations.
186.
Based on the foregoing, supra, at 85-175, Defendant University of Denver
failed to conduct an adequate, reliable, and impartial investigation when it conducted its
investigation of the Incident and subsequent investigation and review, in a manner that was biased
against Plaintiff.
187.
Significantly, at the time the Report was submitted, more than six months after
the alleged Incident, the University was sponsoring a campaign for Sexual Assault Awareness
Month. Events included Denim Day on April 15, 2015, described by Defendant Chopp on the
Universitys website as follows: [f]or more than 15 years, this national rape prevention education
campaign has been asking people to make a social statement with their fashion by wearing jeans
on this day as a symbol of protest against the harmful attitudes that surround sexual assault.
Ironically, R.H. first reported the alleged Incident against Plaintiff to Mr. Mariano on the same
day.
188.
Similarly, nine days later, on April 24, 2015, Jane Doe contacted campus safety
to report the alleged incident and request a No Contact Order. On this same date, the University
concluded a three day conference titled, Sexual Assault Awareness Summit which was highly
publicized. Yet, Defendant Butler failed to include any mention of the April 2015 campus climate
in the investigative Report, which upon information and belief, further served to influence, bias
and predetermine the outcome against Plaintiff.
189.
Upon information and belief, various administrators at University of Denver have
demonstrated an inherent predisposition against male students accused of sexual misconduct.
41
190.
Upon information and belief, Defendant Chopp appointed Defendant McAllister
to serve as Title IX Coordinator at University of Denver effective June 1, 2015. Defendant

McAllister, a well-known victims rights advocate, has been endorsed by the prosecution in several
high profile trials as an expert in sexual assault victimization/reaction and trauma. Further,
Defendant McAllister is a former board member and executive director of the Colorado Coalition
Against Sexual Assault, works with clients including the Ending Violence Against Women
Project, the Gateway Battered Women's Shelter and has been faculty member of the Sex Offender
Management National Training team.
191.
Thus, it is highly unlikely that Defendant McAllisters work history and current
involvement with victims advocacy projects has not resulted in an inherent bias against males
accused of sexual misconduct. Accordingly, her ability to remain impartial and unbiased while
overseeing the investigation and resolution of Plaintiffs case is highly questionable.
192.
Furthermore, the University provides numerous resources for complainants,
including The Center for Advocacy, Prevention and Empowerment (CAPE). The center has
advocates who will advise on Title IX procedures, student conduct procedures and academic
accommodations;
however,
their
website
(http://www.du.edu/health-and-counseling-
center/cape/resources/index.html) does not state how their advocates address the needs of the
respondent, who are invariably male.
193.
Significantly, the University of Denver For the Record Annual Security and
Fire Safety Report 2015 which was [p]roduced in compliance with the Jeanne Clery disclosure
of Campus Security Policy and Campus Crime Statistics Act (Clery Report), states as follows:
If a victim is interested in learning more about their options for reporting
through the University Title IX Office, or is uncertain whether they want
make such a report, the report will be forwarded to Title IX. The Title IX
Coordinator will review the investigation process with the victim and
42
options for participation in a formal Title IX investigation. If the victim

wishes to move forward, the investigation will be initiated, resulting in a
finding of responsiblity. (sic., pg. 3)(emphasis added)
194.
Incredibly, University of Denver stated for the Clery Report that the outcome of
a sexual assault complaint is predetermined by the Title IX Coordinator, and will result in a certain
finding of responsibility against the respondent. Evidently, Plaintiff was going to be found
responsible of the charges, simply by virtue of the fact that an investigation had been initiated.
195.
Finally, the Report section on Equal Opportunity/ Sexual Harassment University
Policies states the following concerning prevention of sexual assault: Remember, sexual assault
is not just a womans issue. All genders are responsible for preventing sexual assault and rape.
Suggestions for men working to end sexual violence include: 1. Notice the Incident 2. Interpret
incident as emergency 3. Assume responsibility 4. Attempts to help. (pg.16, emphasis
added). This list, which could be addressed to any individual, was specifically provided as
suggestions for men. Thus, the Universitys Equal Opportunity/Sexual Harassment University
Policy assigned responsibility for prevention only to men, with no similar list of suggestions
provided to female students.
196.
Upon information and belief, University of Denver possesses communications
evidencing Defendants inclination to favor female students alleging sexual misconduct over male
students who are accused of sexual misconduct.
197.
Upon information and belief, the University of Denver was under federal
investigation for two separate cases, one specifically involving a respondent, during the time that
Plaintiffs case was investigated. Consequently, the University of Denvers mishandling of
Plaintiffs investigation was wrongfully informed by such federal pressure.
43
198.
As outlined above, the outcome was predetermined and simply a motion into a
biased, prejudiced and implicitly unfair process aggravated by the recent investigations into
University of Denvers potential Title IX violations.
199.
Based on the foregoing, Defendant University of Denver imposed an unwarranted
and excessive sanction on Plaintiff as a result of an erroneous outcome reached by a flawed

investigation.
200.
Based on the foregoing, male respondents in sexual misconduct cases at
University of Denver are discriminated against solely on the basis of sex. They are invariably
found guilty, regardless of the evidence, or lack thereof.
201.
Based on the foregoing, Plaintiff was subjected to a biased, prejudiced and
explicitly unfair process in violation of Title IX.

202.
As a result of the foregoing, Plaintiff is entitled to damages in an amount to be
determined at trial, plus prejudgment interest, attorneys fees, expenses, costs and disbursements.
AS AND FOR A SECOND CAUSE OF ACTION
Violation of the Fourteenth Amendment of the United States Constitution
Procedural Due Process
203.
set forth herein.

204.
On April 4, 2011, the United States, by and through its agent the United States
Department of Education, sent a 19-page Dear Colleague letter to colleges and universities all
over the country, stating that sexual violence on campus was a form of sexual harassment
prohibited by Title IX (Dear Colleague Letter).
205.
Reversing previous federal policy, the Dear Colleague Letter threatened colleges
with hundreds of millions of dollars in de-funding penalties if they did not immediately begin
44
investigating and adjudicating allegations of campus sexual assault under detailed procedures and
terms dictated by the federal government.
206.
For example, and without limitation, as a result of the Dear Colleague Letter and
later statements, actions, and directives issued by the United States, colleges were as of 2015:
(i)
Required to investigate and adjudicate campus sexual assault allegations

regardless of whether the complainant reported his or her allegations to the
police (whereas previous federal policy had permitted colleges to allow law
enforcement to handle allegations of sexual assault);
(ii)
Required to establish a coordinated and centralized investigative and

adjudicative procedure according to detailed rules mandated by the federal
government and headed by a Title IX coordinator;
(iii)
Required to protect the anonymity of students accusing another student of

sexual assault if the student making the allegations so requests;
(iv)
Required to apply a preponderance of the evidence standard when

adjudicating such allegations (whereas previously colleges frequently
applied higher evidentiary standards, such as the clear and convincing
evidence standard);
(v)
Required not to allow cross-examination by the accused student;
(vi)
Required or strongly encouraged to expel students that the college finds to

have engaged in unconsented-to sexual intercourse with another student.
207.
Since 2011, the United States has consistently reaffirmed and adhered to the
threat of substantial monetary penalties made in the Dear Colleague Letter. For example, in July
2014, DOE Assistant Secretary for Civil Rights Catherine Lhamon stated that she would strip
federal funding from any college found to be non-compliant with the requirements of the Dear
Colleague Letter. Do not think its an empty threat, Lhamon warned.
208.
Upon information and belief, University of Denver so acted in response to the
federal governments threat that colleges refusing to comply would be found in violation of Title
IX and be subject to extremely substantial, indeed crippling, monetary penalties.
45
209.
In fact, demonstrating its attempted compliance with the 2011 Dear Colleague
Letter, University of Denvers 2015 Clery Report annual disclosure of crime statistics reveals that
University of Denver investigated 2 instances of forcible sex offenses in 2011; 6 instances of
forcible sex offenses on campus in 2012; 8 instances of forcible sex offenses in 2013; and 16
instances of sexual assault on campus in 2014.
210.
Upon information and belief, since the 2011 Dear Colleague Letter was issued,
the number of male students disciplined by the University of Denver for sexual misconduct has
increased considerably.
211.
Accordingly, University of Denver was coerced by the United States into
complying with the Title IX investigative and adjudicatory process mandated by the Dear
Colleague Letter and by subsequent federal actions, statements, and directives.
212.
University of Denver applied the investigative and adjudicatory process dictated
to it by the federal government when it investigated and adjudicated Jane Does complaint against
Plaintiff.
213.
Under clear and controlling federal constitutional case law, a private actor
becomes a state actor when his or its actions are coerced by the United States government.
214.
Under clear and controlling federal constitutional case law, a private actor
required by the United States to investigate and adjudicate alleged violations of a federal statute
under terms and procedures dictated by the federal government is a state actor when engaging in
such investigation and adjudication.
215.
Accordingly, when University of Denver investigated and adjudicated Jane Does
sexual assault complaint against Plaintiff, and when it expelled Plaintiff after reaching its
46
conclusion, University of Denver was a state actor and was therefore required to honor the rights
and guarantees set forth in the United States Constitution.
216.
In the course of such investigation and adjudication, University of Denver
flagrantly violated Plaintiffs clearly established rights under the Due Process Clause of the
Fourteenth Amendment through its repeated acts of gender bias and of deprivation of the minimal
requirements of procedural fairness. Without limitation, such acts included the following:
While Defendants failed to abide by the timeframes outlined in Denvers

policies, they nonetheless required Plaintiff to comply with unreasonable
and arbitrary timeframes.
The Preliminary Report dated June 26, 2015 referenced for the first time
Plaintiffs alleged use of coercion, an allegation that Plaintiff was not made
aware of prior to being interviewed, or at any other time during the
investigation process.
While the Preliminary Report notes that the active investigation

concluded on June 16, 2015, Plaintiff did not receive notice of a
determination until July 15, 2015, more than one month later.
Defendants Grove and Butler performed a biased and subjective

investigation when they selectively interviewed hearsay witnesses
favorable to Jane Doe, while failing to interview witnesses identified by
Plaintiff who had direct knowledge of the Incident.
Defendants assessed a No Contact Order prior to notifying Plaintiff of the

specific charges brought against him by Jane Doe, or hearing his version of
the events.
Plaintiff was never notified of his right to request an NCO against Jane Doe,
while Jane Doe was advised of her right to file an NCO against Plaintiff.
Indisputably, the differential treatment afforded to Plaintiff as the male
accused was a violation of Title IX as well as Plaintiffs right to fair process.
Plaintiff was misinformed of the charges against him, namely, NonConsensual Sexual Contact and Sexual Exploitation, prior to participating
in the investigatory interviews and submitting his written statements.
Plaintiff was deprived of the opportunity to fully and adequately defend

himself when Defendants continually modified the charges against him
throughout the investigation.
47
The University of Denver employs a single investigator model which denies

a respondent of the right to have a hearing on the charges against him, thus
eliminating the respondents opportunity to confront his accuser, question
any witnesses against him and present his defense before an impartial
decision maker, in violation of his rights to fair process.
217.
Based on the foregoing, University of Denver was a state actor when it violated
the rights and guarantees set forth in the Fourteenth Amendment of the United States Constitution
during the investigation and adjudication of Jane Does sexual misconduct complaint against
Plaintiff.
218.
AS AND FOR A THIRD CAUSE OF ACTION
Breach of Contract
219.
set forth herein.

220.
Based on the aforementioned facts and circumstances, University of Denver
created express and implied contracts when it offered, and Plaintiff accepted, admission to
University of Denver and paid the required tuition and fees.
221.
Based on the aforementioned facts and circumstances, Defendant University of
Denver breached express and/or implied agreement(s) with Plaintiff.

222.
Defendant University of Denver committed several breaches of its agreements
with Plaintiff during the investigation and hearing process. A non-exhaustive list of University of
Denvers breaches include the following:
48
Defendants failed to conduct a thorough and impartial investigation.

223.
The University of Denvers Procedures specify that the investigation is designed
to provide a fair and reliable gathering of the facts. The investigation will be thorough, impartial
and fair, and all individuals will be treated with appropriate sensitivity and respect.
224.
Notwithstanding, University of Denver performed a one sided and biased
investigation in favor of Jane Does allegations of sexual misconduct.

225.
Based on the foregoing, supra, at 85-175, the investigation was replete with
procedural errors including, but not limited to:
the failure to properly investigate and collect all available

evidence;
the failure to include information provided by Plaintiff in the

investigative Report;
the complete disregard of contradictions and inconsistencies

in Jane Does statements when making assessments of
credibility; and
a material misrepresentation of the charges brought against

Plaintiff.
226.
Based on the foregoing, supra, at 85-175, due to an understaffed OEO, a lack
of experience and training on the part of the investigator and a variety of procedural errors,
Defendants failed to perform a thorough and impartial investigation process, in violation of their
contractual obligations to Plaintiff.
The Investigator lacked the requisite training and experience.
227.
The University of Denvers Procedures state The University will designate an
investigator who has specific training and experience investigating allegations of harassment,
discrimination, sexual harassment, sexual violence, relationship violence and stalking.
49
228.
Defendant Butler was the primary investigator responsible for preparing the final
Report and determining whether Plaintiff was responsible for a violation of the Universitys
policies. Upon information and belief, Defendant Butler began his employment with the University
on February 23, 2015, having had no previous experience as an investigator.
229.
Upon information and belief, Defendant Butler began a course administered by
ATIXA in Title IX Investigative Training during April 2015, which consisted of either a two or
four day course of self-reported participation. Notably, ATIXA founder Brett Sokolow himself
acknowledges that When these folks come out of [the training course], theyre novices, theyre
not ready.
230.
Nevertheless, at the time Defendant Butler first met with Jane Doe on May 1,
2015 to open the inquiry against Plaintiff, he had been employed by Denver for only 9 weeks and
had taken a brief course in investigative techniques merely days prior.
231.
Based on the foregoing, University of Denver departed from its mandated
Procedures when it failed to ensure that all persons involved in implementing its grievance
procedures were properly trained.
232.
Based on the foregoing, the University of Denver breached its contract with
Plaintiff when it failed to designate an investigator who has specific training and experience
investigating. (emphasis added).
Defendants failed to conduct a timely investigation.
233.
The University of Denvers Procedures provide that it will seek to conclude the
investigation within forty-five (45) days of receiving the report and will make every effort to
resolve all reports within sixty (60) calendar days.
50
234.
The Procedures further provide that the foregoing time frames may be extended
for good cause to ensure the integrity and completeness of the investigation. However, should
such an extension be deemed necessary, the University will provide written notice to the parties of
the extension and the reason for the delay.
235.
Notwithstanding, although the OEO received the incident report on April 30,
2015, the Preliminary Report concluding the investigation was not delivered until June 26, 2015,
57 days later. Further, despite the delay, the University failed to provide Plaintiff with written
notice of the extension, or the reason for such extension.
236.
Similarly, the University failed to resolve the complaint within its self-imposed
sixty (60) day time frame when it took seventy-nine (79) days to arrive at a decision. Yet, the
University again failed to notify Plaintiff in writing of the extension or provide an explanation for
same.
237.
Based on the foregoing, University of Denver breached its contract with Plaintiff
when it failed to timely complete the investigation and failed to notify Plaintiff of the reasons for
the extension.
University of Denver failed to afford Plaintiff an equal opportunity to be heard.
238.
University of Denvers Procedures provide that Complainant and Respondent
will have an equal opportunity to be heard, to submit information, and to identify witnesses who
may have relevant information.
239.
Based on the foregoing, supra, at 85-175, the University breached its contract
with Plaintiff when it selectively interviewed witnesses favorable to Jane Doe despite their lack of
personal knowledge, overlooked potentially exculpatory evidence, and failed to interview
witnesses identified by Plaintiff who had direct knowledge of the Incident.
51
240.
Accordingly, Plaintiff was denied an equal opportunity to be heard, to submit
information and to identify witnesses in support of his defense, in violation of University of

Denvers Procedures and his right to fair process.
University of Denver failed to provide a rationale for the Decision.
241.
The University of Denvers Procedures state the final investigative report will
include the determination of responsibility and the rationale for the determination.
242.
However, the Decision Letter dated July 15, 2015 consisted of a blanket
statement:
The Investigators find it more likely than not that
[Plaintiffs] actions on the night of October 9, 2014 resulted
in non-consensual sexual contact with [Jane Doe] by means
of coercion in violation of the Universitys Equal
Opportunity policies.
243.
Thus, Defendant Butler failed to provide any explanation or rationale as to what
specific details, facts, or statements led to the Decision. Defendants failure to identify how the
evidence stated in the Report was used and weighted to reach the conclusion precluded Plaintiffs
right to effectively challenge the Decision and Sanction in his appeal.
244.
Based on the foregoing, University of Denver breached its contract with Plaintiff
when it failed to provide a rationale for the severe and unjust outcome.
University of Denver failed to afford Plaintiff sufficient
time to challenge the participation of an Outcome Council member.
245.
The Procedures provide that Respondent and Complainant(s) will be notified of
the Outcome Council members who will be serving and have the right to object to the participation
of any member based on a demonstrable significant bias. Such objections are due, with supporting
information, to a designated Associate Provost within two (2) business days.
52
246.
Notwithstanding, on Friday July 17, 2015, Plaintiff received written notice from
Defendant Olson that the Outcome Council would convene on Monday, July 20, 2015. Despite the
Procedures directives, Defendant Olson afforded Plaintiff a mere 24 hours to submit any
objections. Further, the notice did not include a designated Associate Provost for Plaintiff to
contact with his objections.
247.
Accordingly, University of Denver breached its contract with Plaintiff when it
failed to afford him the requisite two (2) business days to prepare objections, accompanied by
supporting information, to the participation of any member of the Outcome Council.
248.
As a direct and foreseeable consequence of the foregoing breaches, Plaintiff
sustained tremendous damages, including, without limitation, emotional distress, loss of

educational and career opportunities, economic injuries and other direct and consequential
damages.
249.
Plaintiff is entitled to recover damages for Defendant University of Denvers
breach of the express and/or implied contractual obligations described above.

250.
As a direct and proximate result of the above conduct, actions and inactions,
Plaintiff has suffered physical, psychological, emotional and reputational damages, economic
injuries and the loss of educational and career opportunities.
251.
AS AND FOR A FOURTH CAUSE OF ACTION
Breach of the Covenant of Good Faith and Fair Dealing
252.
set forth herein.
53
253.
Denver acted in bad faith when it meted out a disproportionate Sanction of expulsion
notwithstanding the flawed investigative process and lack of evidence in support of Jane Does
claims of sexual misconduct.
254.
Denver breached and violated a covenant of good faith and fair dealing implied in the agreement(s)
with Plaintiff.
255.
As a direct and foreseeable consequence of these breaches, Plaintiff sustained
tremendous damages, including, without limitation, emotional distress, loss of educational and
career opportunities, economic injuries and other direct and consequential damages.
256.
Plaintiff is entitled to recover damages for Defendant University of Denvers
breach of the express and/or implied contractual obligations described above.

257.
AS AND FOR A FIFTH CAUSE OF ACTION
Promissory Estoppel
258.
set forth herein.

259.
University of Denvers various policies constitute representations and promises
that University of Denver should have reasonably expected to induce action or forbearance by
Plaintiff.
260.
University of Denver expected or should have expected Plaintiff to accept its offer
of admission, incur tuition and fees expenses, and choose not to attend other colleges based on its
express and implied promises that University of Denver would not tolerate, and Plaintiff would
54
not suffer, discrimination or harassment by fellow students or faculty members and would not deny
Plaintiff his procedural rights should he be accused of a violation of University of Denvers
policies.
261.
Plaintiff relied to his detriment on these express and implied promises and
representations made by University of Denver, by choosing to attend University of Denver rather

than other schools of equal caliber and paying the required tuition and fees.
262.
These express and implied promises and representations made by University of
Denver must be enforced to prevent substantial injustice to Plaintiff.

263.
Based on the foregoing, University of Denver is liable to Plaintiff based on
Promissory Estoppel.
264.
As a direct and proximate result of the above conduct, Plaintiff sustained
265.
AS AND FOR A SIXTH CAUSE OF ACTION
Negligence
266.
set forth herein.

267.
Defendants owed duties of care to Plaintiff, arising from the obligations
delineated in University of Denvers Procedures, and directives issued by the U.S. Department of
Educations Office of Civil Rights. Such duties included, without limitation, a duty of reasonable
care to allow Plaintiff an equal opportunity to present information and witnesses in support of his
defense; a duty of care to conduct an impartial and thorough investigation of the allegations of
55
sexual misconduct against him; and a duty of care to utilize the preponderance of the evidence
standard in reaching a determination.
268.
Based on the foregoing, supra, at 85-175, Defendants breached their duties
owed to Plaintiff.
269.
As a direct and proximate result of the above conduct, Plaintiff sustained
270.
AS AND FOR A SEVENTH CAUSE OF ACTION
Declaratory Judgment
271.
set forth herein.

272.
University of Denver has committed numerous violations of the Parties contracts
and of federal and state law.

273.
Plaintiffs future educational and career prospects have been severely damaged.
Without appropriate redress, the unfair outcome will continue to cause irreversible damages to
Plaintiffs future educational and employment prospects, with no end in sight.
274.
As a result of the foregoing, there exists a justiciable controversy between the
Parties with respect to the outcome, permanency, and future handling of Plaintiffs formal student
record at University of Denver.
275.
By reason of the foregoing, Plaintiff requests, pursuant to 28 U.S.C. 2201, a
declaration that: (i) the outcome and findings made by University of Denver be reversed; (ii)
Plaintiffs reputation be restored; (iii) Plaintiffs disciplinary record be expunged; (iv) the record
56
of Plaintiffs expulsion from University of Denver be removed from his education file; (v) any
record of the complaint against Plaintiff be permanently destroyed; (vi) Plaintiff be readmitted to
University of Denver for the Spring 2016 semester; and (vii) University of Denvers rules,
regulations and guidelines are unconstitutional as applied.
PRAYER FOR RELIEF
WHEREFORE, for the foregoing reasons, Plaintiff demands judgment against
Defendants as follows:
(i)
on the first cause of action for violation of Title IX of the Education Amendments
of 1972, a judgment awarding Plaintiff damages in an amount to be determined at trial, including,

without limitation, damages to physical well-being, emotional and psychological damages,
damages to reputation, past and future economic losses, loss of educational and career
opportunities, and loss of future career prospects, plus prejudgment interest, attorneys fees,
expenses, costs and disbursements;
(ii)
on the second cause of action for violation of the Fourteenth Amendment
Procedural Due Process, a judgment awarding Plaintiff damages in an amount to be determined at

trial, including, without limitation, damages to physical well-being, emotional and psychological
damages, damages to reputation, past and future economic losses, loss of educational and career
(iii)
on the third cause of action for breach of contract, a judgment awarding Plaintiff
damages in an amount to be determined at trial, including, without limitation, damages to physical

well-being, emotional and psychological damages, damages to reputation, past and future
57
economic losses, loss of educational and career opportunities, and loss of future career prospects,
plus prejudgment interest, attorneys fees, expenses, costs and disbursements;
(iv)
on the fourth cause of action for breach of the covenant of good faith and fair
dealing, a judgment awarding Plaintiff damages in an amount to be determined at trial, including,

without limitation, damages to physical well-being, emotional and psychological damages,
damages to reputation, past and future economic losses, loss of educational and career
(v)
on the fifth cause of action for promissory estoppel, a judgment awarding Plaintiff
damages in an amount to be determined at trial, including, without limitation, damages to physical

well-being, emotional and psychological damages, damages to reputation, past and future
economic losses, loss of educational and career opportunities, and loss of future career prospects,
plus prejudgment interest, attorneys fees, expenses, costs and disbursements;
(vi)
on the sixth cause of action for negligence, a judgment awarding Plaintiff damages
in an amount to be determined at trial, including, without limitation, damages to physical wellbeing, emotional and psychological damages, damages to reputation, past and future economic
losses, loss of educational and career opportunities, and loss of future career prospects, plus
prejudgment interest, attorneys fees, expenses, costs and disbursements; and
(vii)
awarding Plaintiff such other and further relief as the Court deems just, equitable
and proper.
JURY DEMAND
Plaintiff herein demands a trial by jury of all triable issues in the present matter.
Dated this 20th day of January, 2016.
58
/s/ Michael J. Mirabella

[ e-filing January 20, 2016]
Michael J. Mirabella, Esq.
Michael Mirabella, P.C.
450 E. 17th Ave., Suite 400
Denver, CO 80203
720-931-2094 (ph)
303-592-4385
mmirabella@mbellalaw.com
-and/s/ Andrew T. Miltenberg
[ e-filing January 20, 2016]
Andrew T. Miltenberg, Esq.
Tara J. Novack, Esq.
363 7th Avenue, Fifth Floor
New York, NY 10001
212-736-4500
amiltenberg@nmllplaw.com
tnovack@nmllplaw.com
Attorneys for Plaintiff
59

John Doe v. University of Denver Et. Al.

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Case 1:16-cv-00152 Document 2-1 Filed 01/20/16 USDC Colorado Page 1 of 59

IN THE UNITED STATES DISTRICT COURT FOR

(hereinafter referred to as Plaintiff), by his attorneys Nesenoff &

University of Denver (Defendant University of Denver or University of Denver or the

Case 1:16-cv-00152 Document 2-1 Filed 01/20/16 USDC Colorado Page 2 of 59

On July 22, 2015, the Outcome Council assessed a sanction of permanent

Case 1:16-cv-00152 Document 2-1 Filed 01/20/16 USDC Colorado Page 3 of 59

In addition to the damages sustained by Plaintiff, including his inability to

Throughout the investigative process, Defendants failed to abide by University of

A non-exhaustive list of Defendants wrongful actions include the following: (i)

When Defendants subjected Plaintiff to disciplinary action, they did so in an

Case 1:16-cv-00152 Document 2-1 Filed 01/20/16 USDC Colorado Page 4 of 59

Upon information and belief, Defendant Colorado Seminary, known publicly as

Case 1:16-cv-00152 Document 2-1 Filed 01/20/16 USDC Colorado Page 5 of 59

Upon information and belief, Defendant Chopp is an individual residing in the

Upon information and belief, Defendant Olson is an individual residing in the

Upon information and belief, Defendant McAllister is an individual residing in

Upon information and belief, Defendant Grove is an individual residing in the

Upon information and belief, Defendant Butler is an individual residing in the

Plaintiff and Defendants University of Denver, Board of Trustees, Chopp, Olson,

Case 1:16-cv-00152 Document 2-1 Filed 01/20/16 USDC Colorado Page 6 of 59

grounds that it is conducting business within the State of Colorado.

was acting as an agent of University of Denver at all relevant times herein.

Case 1:16-cv-00152 Document 2-1 Filed 01/20/16 USDC Colorado Page 7 of 59

FACTUAL ALLEGATIONS COMMON TO ALL CLAIMS

Agreements, Representations, Covenants &

With respect to cases involving allegations of sexual discrimination, sexual

University of Denvers Office of Equal Opportunity Procedures, in conjunction

Case 1:16-cv-00152 Document 2-1 Filed 01/20/16 USDC Colorado Page 8 of 59

As part of the initial assessment, the Procedures provide substantial and

disproportionate accommodations to the complainant, including:

Notify the complainant of the right to make a report (or

Notify complainant of the availability of medical treatment

Provide complainant with information about on and off

Discuss complainants expressed preference for manner of

Explain the Universitys policy prohibiting retaliation; and

Explain the role of a support person or advisor.

Case 1:16-cv-00152 Document 2-1 Filed 01/20/16 USDC Colorado Page 9 of 59

The complainant and respondent will have an equal opportunity to be heard, to

Case 1:16-cv-00152 Document 2-1 Filed 01/20/16 USDC Colorado Page 10 of 59

Significantly, University of Denver employs the single investigator model, which

If it is concluded that a violation occurred, the investigative findings will be

referred to an Outcome Council.

Case 1:16-cv-00152 Document 2-1 Filed 01/20/16 USDC Colorado Page 11 of 59

The Outcome Council must be composed of neutral and impartial decision-makers

Although the Outcome Council is granted discretion in determining what sanctions

is not required for a determination of sanctions.

Notably, the Procedures explicitly state that violations of the non-consensual

Case 1:16-cv-00152 Document 2-1 Filed 01/20/16 USDC Colorado Page 12 of 59

options will be discussed.

In the event the Outcome Council assesses a suspension or expulsion, the

imposition of sanctions take immediate effect, regardless of a pending appeal process.

Appeals will only be considered in the following circumstances:

The existence of procedural error(s) so substantial that it

Presentation of new and significant evidence which was not

The outcomes imposed are substantially disproportionate to

by the Outcome Council within five (5) calendar days.

received and will be given an opportunity to submit a written response.

Case 1:16-cv-00152 Document 2-1 Filed 01/20/16 USDC Colorado Page 13 of 59

The Procedures further state that complainants are encouraged to report

Finally, complainants and respondents are granted the following non-exhaustive

rights throughout the investigation process:

To be treated with dignity and respect;