Rossley v. Drake Univ. (342 F. Supp. 3d 904, 2018)

Rebecca Goodgame Ebinger, United States District Judge

I. INTRODUCTION

Plaintiff Thomas Rossley, Jr. brings this suit against Defendants Drake University and Drake University Board of Trustees, challenging Defendants' Title IX investigation that concluded Plaintiff sexually assaulted a female student, and contesting Defendants' failure to investigate his own sexual assault allegations. Plaintiff asserts Defendants violated both Title IX of the Education Amendments Act of 1972 and the Americans with Disabilities Act (ADA). Plaintiff also brings state law claims alleging breach of contract, breach of the covenant of good faith and fair dealing, and estoppel.

Defendants move for summary judgment on all of Plaintiff's claims, asserting: 1) Plaintiff has not identified any genuine issues of material fact showing gender was a motivating factor in the disciplinary process; 2) Plaintiff did not request a reasonable accommodation and thus cannot bring an ADA claim; and 3) Plaintiff has not shown Drake violated any promise or contractual provisions contained in its Code of Conduct or Sexual Misconduct Policy. The Court grants Defendants' motion for summary judgment as to Plaintiff's Title IX claim regarding Plaintiff's erroneous outcome and deliberate indifference theories, but denies Defendants' motion for summary judgment on Plaintiff's Title IX claim regarding Plaintiff's selective enforcement theory. The Court grants Defendants' motion for summary judgment as to Plaintiff's Americans with Disabilities Act claim. As for Plaintiff's state law claims, the Court first determines Plaintiff's estoppel and breach of covenant of good faith and fair dealing claims are subsumed by his breach of contract claim. The Court denies Defendants' motion for summary judgment on some but not all of Plaintiff's alleged breaches of contract. The Court also dismisses Plaintiff's claim of negligent infliction of emotional distress because Plaintiff does not resist Defendants' motion for summary judgment on this claim.

II. FACTUAL & PROCEDURAL BACKGROUND

The following facts are either uncontested or, if contested, viewed in the light most favorable to Plaintiff. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ; Munz v. Michael , 28 F.3d 795, 796 (8th Cir. 1994).

A. Drake's Code of Conduct & Sexual Misconduct Policy

Two documents govern sexual assault investigations and discipline at Drake: the Code of Student Conduct ("the Code") and the Sexual and Interpersonal Misconduct Policy and Notification of Complainant's Rights ("the Policy"). Defs.' Suppl. App. Supp. Defs.' Mot. Summ. J. at APP. 099-132, 133-51, ECF No. 137. The Code addresses various forms of academic and non-academic misconduct. Id. at APP. 102-03. The Policy specifically addresses Drake's "policies and procedures related to [s]exual and [i]nterpersonal [m]isconduct" and is meant to ensure those policies are "interpreted and applied consistently with Title ... IX ... and other applicable law." Id. at APP. 133. Additionally, the Policy is "intended to notify victims/survivors of their rights and resources that are available to them when [s]exual or [i]nterpersonal [m]isconduct occurs." Id.

"Sexual assault" is defined in the Code and Policy as "an extreme form of sexual misconduct ranging from forcible rape to nonphysical forms of pressure that compel individuals to engage in sexual activity against their will." Id. at APP. 111, 134. "The term 'consent,' in the context of sexual activity, means by clear, unambiguous action, agreeing, giving permission or saying yes to sexual activity with someone else ... an individual cannot give consent if incapacitated from doing so due to the influence of drugs, alcohol, or other condition." Id. at APP. 105; see also id. at APP. 134. Neither the Code nor the Policy defines "incapacitation." When there is no consent, "[s]exual intercourse (vaginal, anal, oral)" and "[o]ral sex," among other conduct, constitute sexual assault. Id. at APP. 111-12, 134. Additionally, "[e]ngaging in sexual activity with a person who is unable to provide consent due to the influence of drugs, alcohol, or other condition" is considered sexual assault. Id. The Code states Drake students "acknowledge[ ] the right of the University to initiate disciplinary procedures when an allegation or a complaint of non-academic misconduct is made and to impose disciplinary sanctions when it has been determined that non-academic misconduct has occurred." Id. at APP. 103. Such discipline may include expulsion from the University. Id.

In cases of alleged non-academic misconduct, "[a]ny student, student organization, faculty member or staff member may initiate a complaint against a student or student organization ... by contacting the Dean of Students office or Title IX Coordinator in the case of alleged sexual misconduct." Id. at APP. 116. "Alternatively, the Dean of Students office may initiate a complaint on his or her own initiative, in which case the Dean/designee will be considered the complainant." Id. Under the Policy, "[a]ny University employee who is not statutorily prohibited from doing so ... who becomes aware of [s]exual or [i]nterpersonal [m]isconduct should bring the information to the Title IX Coordinator/Equity and Inclusion Policy Specialist, Dean of Students, or the Director of Human Resources." Id. at APP. 138.

Following a report of alleged sexual misconduct, the Dean of Students will conduct an investigation into the complaint. Id. at APP. 116-17. The individuals responsible for coordinating and investigating the complaint "receive special training or have experience in (1) handling complaints of sexual and/or interpersonal misconduct; and (2) applicable confidentiality requirements." Id. at APP. 131. Both the complainant and respondent are advised they may have a personal advisor present "at any stage of the process." Id. at APP. 138. Following the investigation, the Dean of Students or his designee may initiate formal disciplinary proceedings if he has a "reasonable belief that the charge ... can be proven by a preponderance of the evidence." Id. at APP. 117; see also id. at APP. 119-20 (setting forth disciplinary hearing process). "A preponderance of the evidence exists when it is more likely than not, or the greater weight of the evidence suggests, a violation occurred." Id. at APP. 106.

At the disciplinary hearing, a hearing officer must determine "(1) whether a preponderance of the evidence establishes the accused student engaged in non-academic misconduct; and (2) recommended disciplinary sanction(s), if any." Id. at APP. 121. All of the University's evidence against the accused will be presented by the Dean of Students or his designee. Id. Each party's personal representative may only provide counsel and advice and is otherwise prohibited from "advocat[ing] or tak[ing] an active role in the hearing." Id. at APP. 121-22. However, a personal representative who is an attorney "may make an opening statement, a closing statement and may present written questions to be read by the hearing officer to a witness." Id. at APP. 122. The hearing officer is not required to read any written questions he determines "to be inappropriate or irrelevant." Id.

During the hearing, "[t]he accused, the complainant and the Dean/designee may call witnesses, conduct cross-examination, and may answer any evidence presented by others through rebuttal." Id. Following the hearing, the hearing officer will provide a written decision to the complainant, respondent, and Dean of Students detailing the hearing officer's decision and any associated sanctions. Id. at APP. 123.

If a respondent is found to be responsible for sexual misconduct, the respondent, complainant, or the Dean of Students may appeal the decision or sanctions in writing. Id. Following notice of an appeal, the parties can submit a written response. Id. at APP. 123-24. A party may request a hearing before the appeals council. Id. at APP. 125. The appeals council will then "meet with the appealing and responding parties (and their personal representatives, if any)." Id. at APP. 124-25. "[A]n appeal is limited to a review of the record from the disciplinary hearing, the notice(s) of appeal and the response(s)." Id. at APP. 124. After reviewing the applicable materials, the appeals council may dismiss the appeal, affirm the hearing officer's determination, or reverse the previous decision. Id. at APP. 125. If the President concurs with the council's findings, "the Dean/designee shall have the authority to impose the sanction of expulsion." Id. at APP. 126. "Only the President of the University may recommend readmission of a student who has been expelled." Id.

B. Factual Background

Plaintiff is a former student of Defendant Drake University, a private university located in Des Moines, Iowa. Am. Compl. ¶¶ 5-6, ECF No. 46; Pl.'s Resp. Defs.' Statement Undisputed Material Facts ¶¶ 1-2, ECF No. 111-2. Defendant Drake University Board of Trustees is Drake's governing body. ECF No. 46 ¶ 7; ECF No. 111-2 ¶ 2.

In the fall of 2015, Jerry Parker was the acting Dean of Students. ECF No. 111-2 ¶ 3; Defs.' App. Supp. Defs.' Mot. Summ. J. at APP. 041, Parker Dep. 14:1-22, ECF No. 103. In the spring of 2016, Parker was the Associate Dean of Students, acting as the Dean's designee for the disciplinary proceeding against Plaintiff. Id. In these positions, Parker was responsible for enforcing Drake's Code of Conduct. ECF No. 111-2 ¶ 3; Parker Dep. 164:8-10, ECF No. 103 at APP. 049. Kathryn Overberg was Drake's Title IX Coordinator and her duties included overseeing Defendants' response to complaints of sexual misconduct. ECF No. 111-2 ¶ 4; see Overberg Dep. 16:21-17:2, ECF No. 103 at APP. 025. Overberg began working in her position shortly after the female student known to the Court as Jane Doe filed her complaint of sexual misconduct against Plaintiff. See Parker Dep. 40:22-41:1, ECF No. 103 at APP. 042.

1. Plaintiff's Disabilities

Plaintiff suffers from a mild form of dyslexia, ADHD, and word-retrieval issues. Defs.' Resp. Pl.'s Statement Material Facts ¶ 1, ECF No. 133; see Pl.'s Dep. 129:1-9, 172:20-173:4, ECF No. 103 at APP. 009, APP. 014-15; Pl.'s Sealed App. Supp. Pl.'s Resp. Defs.' Mot. Summ. J. at APP. 775-76, Hr'g Tr. 218:17-219:12, ECF No. 118-8. Due to his disabilities, Plaintiff regularly requested and received academic accommodations through Drake's Disability Services. See Pl.'s Dep. 169:16-170:24, ECF No. 103 at APP. 014; Defs.' Br. Supp. Mot. Summ. J. 27-28, ECF No. 104. Although Plaintiff was generally awarded "time and a half" for exams, the accommodations he requested and utilized "varie[d] class to class." Pl.'s Dep. 170:6-14, ECF No. 103 at APP. 014. In order to secure accommodations, Plaintiff met with each professor individually to determine what accommodations were necessary. Pl.'s Dep. 169:23-170:5, ECF No. 103 at APP. 014. Due to his word-retrieval disability, Plaintiff was often permitted to refer to written notes during oral presentations rather than doing the presentations by memory. Pl.'s Dep. 171:2-15, ECF No. 103 at APP. 014.

1. The Report & Investigation

On the morning of October 9, 2015, Jane Doe, a female Drake student, contacted Drake Public Safety reporting she had been sexually assaulted by Plaintiff. See App. Supp. Defs.' Mot. Summ. J. at APP. 155, ECF No. 103-1 (noting in Drake University Public Safety Report "Incident Discovered/Called In" at 10:21 a.m. on October 9, 2015). Jane Doe explained the previous night she had consumed a large amount of alcohol and had accompanied Plaintiff, who she considered a friend, to his fraternity house, Theta Chi. Id. at APP. 172. Jane Doe stated she "blacked out for an unknown amount of time" after they arrived. Id. She explained that, the next thing she remembered was that she was on a bean bag chair and Plaintiff was on top of her having sexual intercourse with her. Id. Jane Doe reported Plaintiff was wearing a condom. Id. Jane Doe stated she told Plaintiff to stop but he refused. Id. When she explained she was going to be sick, he stopped and let her go to the bathroom. Id. Jane Doe reported she did not get sick at that time but instead left Theta Chi and went to a friend's house in the area. Id. Jane Doe did not file a report with the police but, per the Policy, Drake University Public Safety filed a case report with the Dean of Students. See id. at APP. 155; ECF No. 137 at APP. 138 ("Reports to Campus Public Safety ... will automatically be referred to ... the Dean of Students ..., who will follow up for further processing.").

The same day Jane Doe filed her report with Drake University Public Safety, the Dean of Students' Office sent Plaintiff an email with a letter informing him about the complaint. ECF No. 103-1 at APP. 152-53. The letter provided Jane Doe's name and noted the section of the Code of Conduct the complaint was filed under. Id. It also explained two "interim provisions" prohibiting Plaintiff from contacting Jane Doe or retaliating against her for filing the complaint. Id. at APP. 152. The letter also listed the University Counseling Center as an available service. Id. at APP. 153. Finally, Plaintiff was informed he would need to attend a later-scheduled meeting and that he was permitted "to bring a personal representative to this meeting." Id. at APP. 152.

At the time Jane Doe filed her complaint, Parker was ill and thus could not conduct the investigation himself. Overberg Dep. 65:25-66:6, ECF No. 103 at APP. 027-28; Parker Dep. 39:5-24, ECF No. 103 at APP. 042. Consequently, Drake hired an outside investigator, Mary Howell Sirna, to serve as the lead investigator. Parker Dep. 39:14-24, ECF No. 103 at APP. 042; ECF No. 111-2 ¶ 041. At the time she was appointed to investigate Jane Doe's complaint, Sirna was serving as Iowa State University's interim Title IX coordinator. Sirna Dep. 9:12-10:5, ECF No. 103 at APP. 054-55. Prior to working at Iowa State University, Sirna served as a prosecutor for thirteen years and prosecuted crimes of sexual violence. Sirna Dep. 8:14-23, ECF No. 103 at APP. 054; ECF No. 111-2 ¶ 42. She had received training on handling student complaints of sexual assault. Sirna Dep. 18:2-21:24, ECF No. 103 at APP. 056. Sirna was paired with Tricia McKinney, Drake's Assistant Director of Public Safety, to conduct the investigation. McKinney had also received training on how to handle sexual assault complaints. See McKinney Dep. 14:16-15:16, ECF No. 103 at APP. 097.

According to the investigative report Sirna and McKinney produced, on October 14, 2015, Parker met with Plaintiff to discuss Jane Doe's complaint and the investigative process. ECF No. 103-1 at APP. 185. Parker discussed "internal and external resources" available to Plaintiff, Jane Doe's ability to bring criminal charges, and Plaintiff's right to "have a personal representative of his choosing to attend any and all meetings throughout the disciplinary process." Id. Parker also met with Jane Doe that day and discussed the same topics. Id.

On October 23, 2015, Sirna and McKinney interviewed Jane Doe. Id. at APP. 188. Jane Doe explained that, although she and Plaintiff had never interacted one-on-one, they had mutual friends and had each other's cell phone numbers. Id. Jane Doe stated she believed Plaintiff was attracted to her and that he often texted Jane Doe to invite her to hang out with him or visit him at Theta Chi, which Jane Doe described as "annoying." Id. at APP. 188-89. Jane Doe explained that on the night of October 8, 2015, she had attended a party at the Pi Kappa Phi fraternity house from approximately 9:30 p.m. to midnight. Id. at APP. 189. She attended the party with her friend, Student M, and consumed alcohol. Id. ; see also Sealed Joint Suppl. App., ECF No. 134 (providing a reference key for the names of students and witnesses).

Although Jane Doe could not remember the exact number of drinks she had consumed, "[s]he described herself as getting tired and noticing she was stumbling." ECF No. 103-1 at APP. 189. Following the house party, Jane Doe went to Peggy's Tavern, a nearby bar, with Witness C, Student O, and Witness E. Id. When interviewed by Sirna and McKinney, the students with Jane Doe at Peggy's Tavern reported that she was noticeably drunk. Id. at APP. 201, 204. Jane Doe stated she only had "flashes of memories" at Peggy's Tavern and believed she had only one rum and Coke drink while there. Id. at APP 189. Witness F worked as a bartender at Peggy's Tavern that night and informed the investigators that she had refused to serve Jane Doe because of Jane Doe's level of intoxication. Id. at APP. 205-06.

After Peggy's Tavern, Jane Doe went to Drake Bakery Café and Bar, a nearby restaurant, where she first interacted with Plaintiff. Id. at APP. 189. Although she described herself as "pretty drunk," she told investigators she believed Plaintiff was sober because he offered to drive her home. Id. Witness C told investigators he observed Plaintiff with his arm around Jane Doe and that they were "talking close." Id. at APP. 201. Witness C stated Jane Doe was "by far in worse shape" than Plaintiff and recalled seeing Jane Doe holding onto Plaintiff while she stumbled. Id. at APP. 201. Witness C described Plaintiff as walking straight. Id. Witness A, a bartender at Drake Bakery, told investigators he believed both Plaintiff and Jane Doe were drinking but could not recall any signs that they were impaired. Id. at APP. 197. Witness A stated Plaintiff and Jane Doe appeared "flirty and were laughing and touching but not groping." Id. at APP. 198.

Jane Doe stated she then recalled getting into the backseat of a car and telling Plaintiff to take her home because she was drunk. Id. at APP. 189. Witness B later told investigators that he was responsible for driving the "sober cab" on the night of October 8, 2015, to transport intoxicated fraternity brothers home. Id. at APP. 198. Witness B stated that after receiving a call from Plaintiff at approximately 1:15 a.m., Witness B picked up Jane Doe and Plaintiff. Id. Witness B explained that when he asked where they wanted to go, Jane Doe stated she wanted to go to Theta Chi. Id. at APP. 198-99. Jane Doe told investigators she recalled Plaintiff attempting to kiss her and that she told him she "did not like [him] like that." Id. at APP. 189. Witness B stated both Jane Doe and Plaintiff appeared drunk and that "[s]he may have been a little more drunk than him." Id. at APP. 199. When asked about Plaintiff's level of intoxication, Witness B explained, "He was drunk. He was not belligerently hammered. He was not vomiting." Id. When they arrived at Theta Chi, Jane Doe told Plaintiff she felt ill and ran into the Theta Chi house. Id. at APP. 189. Witness B stated he "noticed the girl falling" when she exited the car. Id. at APP. 199. Another student, Witness L, told investigators she had observed a woman being pulled into Theta Chi that evening and that "the guy was pulling her into the house" while the "girl was stumbling over herself." Id. at APP. 219. Witness L stated Plaintiff was walking straight, "seemed sober," and was pulling the woman "a distance behind him." Id.

Jane Doe told investigators she recalled vomiting in the second floor bathroom after she entered Theta Chi. Id. at APP 189. After realizing she did not have her purse, she left the bathroom to look for Plaintiff, at which point "everything [went] black." Id. at APP. 190. Meanwhile, at Pi Kappa Phi, where Jane Doe began her evening, Witness E, a student who met Jane Doe at Pi Kappa Phi earlier that night, told investigators Witness C approached her and stated he had "lost" Jane Doe and that she had left "with some random guy from Theta Chi." Id. at APP. 204. Witness E, Witness C, and Student O then went to Theta Chi, where they were informed that a drunk woman was upstairs vomiting. Id. Witness E stated she entered the bathroom stall to check on Jane Doe. Id. at APP. 204-05. According to Witness E, Jane Doe was visibly impaired but still able to converse. Id. at APP. 205. When Witness E asked Jane Doe whether she needed assistance, Jane Doe stated Plaintiff would take her home. Id. Witness E then told Plaintiff, who had entered the bathroom, that he should take Jane Doe home when she was feeling better. Id. According to Witness E, Plaintiff was packing a bowl of marijuana, "was responsive to questions and didn't seem that drunk or messed up." Id. Witness C told investigators that when Witness E and Student O came back downstairs, they stated Jane Doe was "pretty drunk" and that Plaintiff had agreed to take her home. Id. at APP. 202. Witness E, Witness C, and Student O then left Theta Chi and returned to Pi Kappa Phi. Id. According to Witness C, on the way back to Pi Kappa Phi, Witness E told him "I don't know of anyone who's a monster enough to have sex with someone ... like that." Id.

Jane Doe told investigators after she had vomited in the bathroom, she was "fairly certain [she] passed out" due to alcohol consumption. Id. at APP. 190. Jane Doe explained she then woke up to Plaintiff "on top of [her] and assaulting [her]" in his room. Id. She stated half of her body was on a beanbag chair and half was on the floor. Id. Jane Doe reported her pants were unbuttoned and pulled down and that she was still wearing her underwear but it had been "pushed to the side." Id. Jane Doe told investigators she told Plaintiff to stop, at which point Plaintiff stated, "Fine. I've got whiskey dick anyway." Id. Jane Doe told Plaintiff she needed to leave because she was going to be sick. Id.

Jane Doe explained that after exiting Plaintiff's room and entering the bathroom, Jane Doe texted Witness I asking if she could sleep on his couch. Id. When Jane Doe did not receive a response from Witness I, Jane Doe walked to Witness I's house, which was close to Theta Chi. Id. at APP. 191. When Jane Doe entered Witness I's house, she woke up Student P by jumping on him. Id. Student P told Jane Doe she was "drunk" and asked her to get out of his room. Id. Jane Doe explained she then went to Witness I's room, where she got into bed with him, removed her shirt, and began kissing him. Id. She did not tell Witness I what had happened with Plaintiff. Id. When interviewed, Witness I told investigators Jane Doe appeared intoxicated, but not "overly intoxicated" and that there was nothing unusual about her appearance. Id. at APP. 211. Witness I explained they talked for about two or three hours and Jane Doe only said she felt "weird around [Plaintiff]" and that "[Plaintiff] was being weird." Id. at APP. 211-12. At approximately 6:45-7:00 a.m. that morning, Jane Doe performed oral sex on Witness I and then left. Pl.'s Sealed App. Supp. Pl.'s Resp. Defs.' Mot. Summ. J. at APP. 493, ECF No. 118-5. At 3:59 a.m., Plaintiff texted Jane Doe and asked "Make it back?", to which Jane Doe responded, "Yeah I'm good thx babe." ECF No. 126-1 at APP. 181.001.

After returning to her apartment, Jane Doe told investigators, she requested Student M, Witness C, and Student Q come to her apartment in order to recreate the events of the previous night. ECF No. 103-1 at APP. 191. After discussing the evening with them, Jane Doe contacted Drake Public Safety and filed a report against Plaintiff. Id. Jane Doe then went to Mercy Hospital, where she received a preliminary exam. Id. Jane Doe told investigators she began "freaking out" at Mercy, began doubting herself, and thought: " '[w]hat am I doing?', '[w]hat if I did consent?', '[w]hat if I'm wrong?', '[w]hat if I made a mistake?' " Id. Jane Doe then declined to take a forensic sexual exam. Id. When asked about her doubts, Jane Doe reiterated to investigators that she did not recall giving consent to Plaintiff nor did she believe she was capable of giving consent. Id. Jane Doe explained she had retained her underwear from the night of the assault and that she had noticed blood stains on her underwear. Id. Jane Doe agreed to provide a medical release to the investigators, if necessary. Id. Sirna later stated that Jane Doe's medical record and underwear were not available to her during the investigation. Sirna Dep. 143:11-16, ECF No. 103 at APP. 066.

On October 23, 2015, investigators interviewed Plaintiff. Plaintiff did not bring a personal representative and later stated he had not finished reading the email he was sent regarding Jane Doe's complaint, which stated he could do so. See Pl.'s Dep. 176:23-177:14, ECF No. 103 at APP. 015-16. During the interview, Plaintiff explained he was friends with Jane Doe and they texted each other, but they had not "hung out one-on-one." ECF No. 103-1 at APP. 192-93. Plaintiff reported on the night of October 8, 2015, he had an assignment due. Id. at APP. 192. Due to his ADHD and dyslexia, he took Adderall to focus. Id. After he completed the assignment, Plaintiff explained, he began playing a drinking game with friends, during which he drank approximately six beers within thirty or forty-five minutes. Id. He described himself as "pretty drunk." Id. Plaintiff explained when he mixes Adderall and alcohol, he remains sober longer but then the alcohol "hits him" and his blackouts are more severe. Id. at APP. 193. However, Plaintiff stated he "still functions during a blackout." Id. Plaintiff told investigators he also experiences a decreased sex drive when he takes Adderall. Id.

Plaintiff explained, following the drinking game, he and his friends went to Drake Bakery, where he had additional drinks. Id. Witness A, a bartender at Drake Bakery, told investigators he recalled serving Plaintiff multiple drinks. Id. at APP. 197. Plaintiff told investigators he remembered Jane Doe entering Drake Bakery and believed he was "more drunk tha[n] she was." Id. at APP. 193. Plaintiff explained Jane Doe acted in a "flirty way" toward him and that when he asked if she wanted to leave, she agreed. Id. Plaintiff then called the "sober cab," which arrived at around 1:12 a.m. Id. Plaintiff reported that although he could not remember getting into or out of the car, Witness B told him later that he and Jane Doe were "making out." Id. Plaintiff could not tell investigators who decided to go to Theta Chi. Id.

Plaintiff told investigators he recalled going to his room with Jane Doe after arriving at Theta Chi. Id. at APP. 194. Plaintiff stated two fraternity members, Witness G and Witness H, were playing video games in his room. Id. Plaintiff explained he then began to black out. Id. Witness G confirmed Plaintiff and Jane Doe arrived at Plaintiff's room that evening, but stated he did not see Jane Doe walk or talk at that time. Id. at APP. 207. Witness G told investigators Plaintiff appeared pretty drunk and was "tipping a little bit." Id. He also stated Plaintiff appeared "zoned out." Id. Witness H stated he was playing video games in Plaintiff's room and noted Jane Doe had slurred speech. Id. at APP. 209. When asked about Plaintiff's intoxication, Witness H said he did not have an opinion. Id.

Plaintiff stated he next recalled Jane Doe performing oral sex on him in his car, which was parked outside the Theta Chi house. Id. at APP. 194. He was only aware of this for fifteen to twenty seconds before blacking out again. Id. He reported he did not believe he ejaculated "because [he] can't get stimulated" while drinking. Id.

Plaintiff's last memory involving Jane Doe was waking up and finding Jane Doe standing on a chair next to Plaintiff's loft bed. Id. He stated he had no idea how he had gotten onto his loft bed. Id. Plaintiff reported to investigators he was not concerned about Jane Doe's state of intoxication because the chair she was standing on was mesh and therefore difficult to stand on when the person was sober. Id. at APP. 179-80. When investigators asked whether anything physical or sexual had occurred in his bed, he stated he only remembered Jane Doe kissing him good night and leaving. Id. at APP. 194. Plaintiff told investigators he did not recall having any sexual intercourse with Jane Doe that night. Id. at APP. 195. He did not remember Jane Doe appearing sick at any time during the evening. Id. When asked about his own intoxication level, Plaintiff explained: "I was not in a state to be with her" and "I was not able to give consent that night." Id. Plaintiff reported Jane Doe was "not as bad as [he] was." Id. He stated he was "confused about the situation" and said: "I don't know what happened. I don't know if we had sex." Id. He also explained because of a back injury, he usually experiences pain after having intercourse, but that on the morning of October 9, 2015, his back was not sore. Id. He stated he did not wake up until 12:30 p.m. the afternoon after the alleged assault, and thus missed his shift at work. Id. Finally, Plaintiff explained Witness I had told him that, when Jane Doe came into Witness I's room, she was "bitching because you [Plaintiff] couldn't cum." Id. at APP. 196. Plaintiff was informed about resources on campus, including the counseling center. Id.

The investigators also interviewed Plaintiff's roommate, Witness J, who was present in his dorm room during the alleged assault. Both Witness G and Witness H described Witness J as being intoxicated the night of October 8, 2015. See id. at APP. 207, 209. However, Witness J told investigators he had not consumed any alcohol or marijuana that evening. Id. at APP. 212. Witness J explained he initially went to sleep and remembered Plaintiff and a "girl" walking into the room. Id. at APP. 213. He then went back to sleep. Id. Witness J stated that, approximately 15 minutes later, he heard "them" get down from Plaintiff's bed, based on the sound of Plaintiff's ladder. Id. Witness J explained he did not hear anything indicative of people having sex. Id. Witness J also explained Plaintiff knew he was in the room and never asked him to leave. Id. Witness J stated when he left to get some water, he saw Jane Doe in the stall of a bathroom and observed Plaintiff in the bathroom outside the stall. Id. at 213. Once he was sure Jane Doe was taken care of, he returned to the room and went to bed. Id.

The investigators interviewed Witness J a second time because they believed "Witness J was being less than forthcoming." Id. at APP 215. Witness J reiterated what he had previously said. See id. at APP. 215-16.

The investigators also interviewed Witness K, a member of Theta Chi. Id. at APP 217. Witness K explained that, on the morning of October 9, 2015, Student T was making fun of Plaintiff for leaving Drake Bakery with a girl. Id. Plaintiff then admitted to "hooking up" with the girl and explained he had "wasted a condom because he couldn't cum." Id.

Following his interview with Sirna and McKinney, Plaintiff requested a meeting with Parker and Overberg in November 2015. Overberg Dep. 62:15-24, ECF No. 103 at APP. 027. During that meeting, Plaintiff explained that a friend had told him that since he could not remember part of the evening of October 8, 2015, and because Jane Doe had performed oral sex on him, perhaps he was a victim as well. Overberg Dep. 63:6-12, ECF No. 103 at APP. 027. Overberg stated she was unsure why Plaintiff was telling them this information and wanted to ensure that whatever information he wanted to share would be included in the investigative report. Overberg Dep. 83:18-84:6, ECF No. 103 at APP. 30. In response to Plaintiff's comments, Overberg and Parker set up a second interview with the investigators. Overberg Dep. 85:24-87:8, ECF No. 103 at APP. 030-31. Overberg then emailed Sirna and McKinney, explaining they should ask Plaintiff whether he was "sharing this information in response to the allegations against [him], or [is he] asking that a conduct charge be filed against [Jane Doe] for sexual assault?" Id. at APP. 308. Overberg directed Sirna and McKinney to get the necessary information from Plaintiff if he was requesting that a charge be filed against Jane Doe. Id. Additionally, Overberg explained to Sirna and McKinney that, although it was likely they could perform an investigation into both claims simultaneously, they "would need to be sure the investigation into [Plaintiff's] charge was complete." Id.

On November 10, 2015, McKinney met with Plaintiff in person while Sirna joined them on the phone. Sirna Dep. 134:16-23, ECF No. 103 at APP. 065; id. at APP. 182. Plaintiff explained to the investigators that a female friend of Plaintiff's had suggested he had been sexually assaulted, since Jane Doe had made fun of Plaintiff for not being able to ejaculate and Plaintiff had no memory of such an issue. Id. at APP. 220; see Sirna Dep. 134:1-11, ECF No. 103 at APP. 065. Sirna asked whether there was any additional information or witnesses he wanted to provide at that time concerning his statement, and he responded "I don't think so." Id. at APP. 182, 220. When asked whether he wanted to file a complaint against Jane Doe, he stated he did not want to file a conduct charge at the time and said: "I'm just verbalizing the issue." Sirna Dep. 135:5-13, ECF No. 103 at APP. 065; id. at APP. 182-83. Sirna asked if Plaintiff needed any additional resources, Plaintiff explained he was fine. Id. at APP. 183. Plaintiff later stated he had told the investigators he was not that bothered by the investigation because "it took me months to be able to admit that I was a victim." Pl.'s Dep. 181:4-11, ECF No. 103 at APP. 017. Plaintiff's father, Thomas Rossley, Sr., stated in a declaration that during a phone call with Parker, Parker stated the school would not investigate Plaintiff's alleged assault because it was a form of retaliation. Pl.'s Sealed App. Supp. Pl.'s Resp. Defs.' Mot. Summ. J. at APP. 1179-80, Rossley, Sr. Decl. ¶ 10, ECF No. 118-13. Plaintiff stated his father told him about this meeting and Parker's belief regarding retaliation. Pl.'s Dep. 153:23-154:5, ECF No. 103 at APP. 012.

On December 9, 2015, Sirna submitted the investigative report to Parker. Id. at APP. 184. In the course of their investigation, the investigators interviewed twelve witnesses, including Plaintiff and Jane Doe. Id. Sirna listed nine other students they had not interviewed and briefly explained why they had not been questioned. Id. at APP. 186-87. For instance, Sirna explained Student P, who Jane Doe had jumped on after leaving Theta Chi, had a "limited interaction with [Jane Doe]." Id. at APP. 187. Similarly, Student T, who was present during the conversation between Plaintiff and Witness K in which Plaintiff is reported to have said he wasted a condom, "would [have] provided duplicative statements." Id. at APP. 186. The investigators also did not interview Student N, Jane Doe's ex-boyfriend, because Jane Doe had asked them not to contact him and he had not been present that evening. Id. at APP. 187.

Sirna ultimately determined there was a preponderance of evidence suggesting a sex act had occurred and the act was not consensual, because Jane Doe was either unconscious or incapacitated. Id. at APP. 221-22. Sirna based this determination largely on six facts: 1) there were no eye witnesses and Witness J, Plaintiff's roommate who was reportedly in the room during the alleged assault, had limited credibility because there were inconsistent reports about whether he was drinking that evening; 2) Plaintiff's claims regarding his lack of memory were "contradicted by [his] own words to Witness K ... when he ... stated he 'wasted a condom because he couldn't cum' "; 3) although both parties were drinking that evening, multiple witnesses corroborated Jane Doe's "impairment and eventual incapacitation"; 4) neither Witness I nor Jane Doe stated that Jane Doe had complained that Plaintiff had been unable to "cum"; 5) if Jane Doe had made such a comment, "it was likely she was merely repeating what [Plaintiff] had told her when she regained consciousness during the assault"-namely, that he had "whiskey dick"; and 6) there was little evidence that Plaintiff was incapacitated, as the witnesses indicated either they had not formed an opinion about his level of intoxication or he wasn't as drunk as Jane Doe. Id. at APP. 222-24. In the conclusion section, Sirna noted Jane Doe was largely credible because Jane Doe had made statements to investigators "against her own interest," including an admission she had doubted herself at Mercy Hospital and had engaged in sexual activity with Witness I following the assault. Id. at APP. 225. Sirna's report mentions Plaintiff thought he might also be a victim during his second interview, but the report does not analyze Plaintiff's complaint nor does it make any findings about these allegations. Id. at APP. 184-225.

2. The Disciplinary Hearing

After reviewing Sirna's report, Parker determined a disciplinary hearing on the matter was warranted. Parker Dep. 73:8-15, ECF No. 103 at APP. 043. Parker emailed Plaintiff in January 2016 to inform him of this decision and discuss the report. Parker Dep. 95:14-96:4, ECF No. 103 at APP. 45.

Jerry Foxhoven was serving as Drake's hearing officer at the time. Parker Dep. 102:7-21, ECF No. 103 at APP. 046. Foxhoven had received training regarding sexual misconduct. Foxhoven Dep. 11:18-12:17, ECF No. 103 at APP. 073. Prior to the hearing, Foxhoven issued a notice to all parties (Jane Doe, Parker, and Plaintiff) and their representatives explaining Foxhoven would not admit "any testimony or evidence of the prior sexual conduct or mental health issues of either" Jane Doe or Plaintiff. ECF No. 137 at APP. 230. Plaintiff's personal representative, Matt Kaiser, filed a motion seeking to admit Witness I's statement that Jane Doe performed oral sex on him, arguing the ban on prior sexual conduct did not apply and that Jane Doe's actions were "highly probative of her state of mind on that night and her capacity to consent mere hours earlier." ECF No. 103-1 at APP. 299. Foxhoven permitted Plaintiff to introduce evidence regarding Jane Doe's subsequent actions with Witness I to show Jane Doe's level of intoxication and thus her ability to consent. ECF No. 137 at APP 231.

Additionally, Foxhoven considered how much time each party (Jane Doe, Parker, and Plaintiff) should have to present their arguments during the hearing. See ECF No. 103-1 at APP. 294. Foxhoven first gave each party equal time to make closing and opening arguments. Id. After considering Plaintiff's pre-hearing motion, Foxhoven determined both Jane Doe and Parker would each have five minutes for an opening statement and ten minutes for a closing, while Plaintiff was given ten minutes for an opening statement and up to twenty minutes for a closing statement. Id. at APP. 234. After Parker argued Title IX requires all parties to be treated equally, however, Foxhoven amended his earlier decision. Id. at APP. 227. Under the amended order, Plaintiff and Jane Doe would both have five minutes for opening argument and ten minutes for closing argument. Id. Parker was given five minutes for both his closing and opening statements, although his argument was limited to "any position that is inconsistent with the position of [Jane Doe]." Id.

The disciplinary hearing was held on February 12, 2016. ECF No. 103-1 at APP. 236. After Jane Doe's personal representative gave her opening statement, Parker stated during his opening statement that, based on all the evidence available to the Dean of Students' Office, the Office "found [Jane Doe]'s account of this incident as being more credible" and thus recommended "the appropriate sanction be expulsion." Pl.'s Sealed App. Supp. Pl.'s Resp. Defs.' Mot. Summ. J. at APP. 570-71, ECF No. 118-6. During his opening statement, Plaintiff's personal representative explained "the two people who were involved were both blackout drunk." Id. at APP. 571. During a later portion of his opening statement, however, Plaintiff's personal representative argued, based on the timeline of the evening, "[w]e can know that [Jane Doe] was not incapacitated by looking at [the] window of 45 minutes ... incapacitation doesn't turn on a dime." Id. at APP. 575-76. Based on Plaintiff's personal representative's statement that both Plaintiff and Jane Doe were "blackout drunk" during the events of the evening, Foxhoven amended his previous order regarding the admissibility of Jane Doe's actions after she left Plaintiff's room. See id. at APP. 596-98. Foxhoven explained because his order permitting the evidence was premised on the issue of whether Jane Doe was incapacitated and Plaintiff's personal representative's concession that Jane Doe was "blackout drunk" made her incapacitation no longer a contested issue, Jane Doe's subsequent actions were irrelevant. Id. at APP. 596, 597. Thus, Plaintiff was not permitted to inquire into Jane Doe's actions with Witness I or Student P after leaving his room.

Along with Jane Doe and Plaintiff, eleven witnesses testified at the disciplinary hearing. See id. at APP. 559-61. All parties engaged in cross-examination. Id. Per the Code and the Policy, Jane Doe and Plaintiff did not cross-examine each other directly; rather, Foxhoven read questions each party had submitted. See id. at APP. 559, 561; ECF No. 137 at APP. 122. Additionally, Plaintiff's personal representative questioned Plaintiff on direct examination. Pl.'s Sealed App. Supp. Pl.'s Resp. Defs.' Mot. Summ. J., ECF No. 118-8 at APP. 771; see also ECF No. 137 at APP. 121-22.

During her testimony, Jane Doe reiterated what she had previously told the investigators about the events of October 8 and 9, 2015. See generally ECF No. 118-6 at APP. 578-611. However, for the first time, Jane Doe also testified that because she often experiences pain when she has vaginal intercourse, she did not believe she would have consented to having vaginal intercourse with Plaintiff. ECF No. 118-6 at APP. 590. Plaintiff's personal representative did not submit a question about the pain Jane Doe experiences during vaginal intercourse for Foxhoven to ask during Jane Doe's cross examination. See id. at APP. 611-22 (transcript showing Foxhoven asked Jane Doe various questions submitted by Plaintiff's personal representative but not about the pain Jane Doe experiences during vaginal intercourse).

Plaintiff called two individuals who had not been interviewed by Sirna: Student S and Student T. Id. at APP. 560. No party called Plaintiff's roommate, Witness J, who had been present in Plaintiff's room that evening. Id. at APP. 559-61. Additionally, no party called Witness K, who had previously reported to investigators that Plaintiff had told Witness K that Plaintiff had wasted a condom on Jane Doe. Id. ; see also ECF No. 103-1 at APP. 217. However, Plaintiff did call Student T, who was also present during that conversation. ECF No. 118-6 at APP. 560. Student T testified that, although Plaintiff confirmed he had "hooked up" with Jane Doe the previous night, he did not remember Plaintiff ever saying he had "wasted a condom" on Jane Doe. ECF No. 118-8 at APP. 751. Plaintiff's personal representative also did not call Student P, the individual Jane Doe jumped on after leaving Plaintiff's room, although Plaintiff's personal representative argued to Foxhoven that investigators should have interviewed Student P in order to establish a timeline for the evening. Id. at APP. 619, 620.

On February 17, 2016, Foxhoven filed his order regarding the case. ECF No. 103-1 at APP. 236-46. Foxhoven determined first "that a preponderance of evidence supports the fact that vaginal intercourse between [Jane Doe] and [Plaintiff] was either attempted or completed on the evening in question .... In any event, it is clear that [Plaintiff] touched the genitals of [Jane Doe] on the evening in question." Id. at APP. 237. Foxhoven also noted no one else appeared to be present in the room during their interaction and "[n]o sexual exam of [Jane Doe] was completed, resulting in a lack of definitive evidence of a sexual assault."Id. Instead, Foxhoven based his determination on the fact that although Jane Doe was "not conscious during the assault," she awoke to Plaintiff "violating" her, "[h]er pants were off," Plaintiff stated he had "whiskey dick," and that when Jane Doe left the fraternity house, "walking was painful in a way that indicated to her that she had been subjected to vaginal sex." Id.

Foxhoven also determined "a preponderance of evidence supports the fact that [Jane Doe] did not give her consent to the sexual contact in question," as she was incapacitated. Id. Foxhoven considered the following facts in making his decision: 1) Jane Doe's testimony that she experiences pain when having vaginal intercourse and thus does not have vaginal intercourse unless she is comfortable and trusts her partner, "[n]one of [which] apply to the relationship between [Jane Doe] and [Plaintiff]"; 2) testimony from Witnesses C, F, A, E, L, H, B, and G as to Jane Doe's level of intoxication; and 3) the argument of "[Plaintiff] and his counsel ... that both [Plaintiff] and [Jane Doe] were 'black out drunk' on the night in question." Id. at 237-40. Foxhoven also noted although Witness H stated upon initial contact with Jane Doe, he was not aware of anything that would have led him to believe Jane Doe was intoxicated, "he further testified that he believed that the complainant was extremely intoxicated by the fact that she was vomiting." Id. at APP. 240.

Foxhoven next discussed Plaintiff's position that he was also incapacitated in a section entitled "[Plaintiff]'s Argument of Mitigation." Id. at APP. 241. As to Plaintiff's argument "that he was basically 'blacked-out' and that, therefore, he should not be held responsible for his conduct," Foxhoven determined Plaintiff's account lacked credibility. Id. Rather, Foxhoven concluded although Plaintiff had been drinking that evening, the evidence showed he was "clearly more in control of himself than [Jane Doe]" and was aware of her level of intoxication. Id. Foxhoven based this determination on: 1) statements from Witnesses C and L and Student S regarding Plaintiff's level of intoxication at Drake Bakery and when entering the fraternity house; 2) Witness B's statement that, although Plaintiff was intoxicated that evening, Jane Doe was more intoxicated during the sober cab ride; 3) Witness E's testimony regarding Plaintiff's actions and ability to "pack[ ] a bowl" in the bathroom at Theta Chi while Jane Doe vomited; 4) Witness H's comment that Plaintiff did not seem intoxicated; 5) Witness G's testimony that Plaintiff told him he "had the situation handled" in reference to Jane Doe's vomiting; and 6) Plaintiff's testimony indicating "that he was able to call the 'sober cab' " and had likely punched in the security code to enter the fraternity house, although he stated he did not remember doing so. Id. at APP. 241-43. Foxhoven's findings did not address Plaintiff's complaint that he did not consent to Jane Doe giving him oral sex in the car before his alleged assault of Jane Doe.

Based on his findings, Foxhoven recommended Plaintiff be expelled. Id. at APP. 245. Acknowledging Plaintiff's personal representative's request Plaintiff be permitted to complete his degree, Foxhoven noted, due to Jane Doe's level of intoxication, Plaintiff's knowledge of Jane Doe's intoxication, and the "particularly aggravating factor" that the assault occurred after Jane Doe vomited, Foxhoven recommended expulsion. Id. at APP. 244. Plaintiff was informed about his right to appeal. Id. at APP. 245.

3. Appeals Panel Decision & Expulsion

On February 29, 2016, Plaintiff's personal representative filed a timely notice of appeal. Id. at APP. 248-63. Prior to the appeals hearing, the panel sent all parties a notice explaining the procedure it would follow at the hearing. ECF No. 137 at APP. 266-68. The panel concluded each party would be given twenty minutes to present their argument. Id. at APP. 267. All parties were permitted to reserve five minutes for rebuttal. Id. The panel also noted "each member of the three person appeals panel has no relationship or connection with either [Plaintiff] or [Jane Doe]." Id. at APP. 268.

On March 24, 2016, the hearing was held as scheduled and according to the procedure set forth in the panel's notice. ECF No. 137 at APP. 266-268. After the hearing, the panel affirmed Foxhoven's findings and his recommendation of expulsion. ECF No. 103-1 at APP. 269-70. The panel noted it had reviewed written responses from the parties regarding Plaintiff's appeal, in addition to "all of the exhibits and documents from the hearing as well as the audio recording of the hearing." Id. at APP. 269; see also Peters Dep. 37:5-40:18, ECF No. 103-1 at APP. 310. The panel determined Foxhoven's decision was supported by substantial evidence, explaining: 1) witnesses testified as to Plaintiff's and Jane Doe's differing level of intoxication; and 2) Plaintiff corroborated Jane Doe's testimony that Plaintiff had been using a condom during a conversation with his friends the next day. ECF No. 103-1 at APP. 270. The panel affirmed Foxhoven's recommendation of expulsion, noting having sexual intercourse while someone was incapacitated and unable to give consent "is the worst kind of sexual assault." Id.

On April 8, 2016, Parker emailed Plaintiff confirming the panel's decision and explaining that the President of the University, Earl Martin, concurred in the decision. ECF No. 103-1 at APP. 271. Consequently, Plaintiff was officially "expelled from Drake University effective immediately." Id.

C. Procedural Background

On December 1, 2016, Plaintiff filed suit against Defendants, as well as other individually named defendants. Compl., ECF No. 1. Plaintiff's complaint alleged eight counts, asserting Defendants violated: Title IX of the Education Amendments of 1972 (Count I); the Fourteenth Amendment of the United States Constitution (Count II); and Title II of the Americans with Disabilities Act (Count VI). He also brought state law claims based on breach of contract (Count III), breach of the covenant of good faith and fair dealing (Count IV), negligent infliction of emotional distress (Count V), and estoppel and reliance (Count VII). Finally, Plaintiff sought declaratory relief (Count VIII). On August 2, 2017, Plaintiff filed an Amended Complaint, in which he brought the same substantive claims but no longer filed under a pseudonym. Compare Am. Compl., ECF No. 46, with ECF No. 1. On August 11, 2017, the Court dismissed Plaintiff's constitutional claim, Count II, against all Defendants and dismissed all other Counts against the individually named defendants. Order Defs.' Partial Mot. Dismiss 10, ECF No. 48.

On May 17, 2018, Defendants filed the current motion for summary judgment on all counts. ECF No. 99. Plaintiff resists. ECF No. 111; ECF No. 121. Defendants have replied. ECF No. 135. The matter came before the Court for a hearing on July 20, 2018. Hr'g Mins. Defs.' Mot. Summ. J., ECF No. 143. Attorneys Philip Byler and David Goldman represented Plaintiff. Id. Attorneys Frances Haas and Mary Funk represented Defendants. Id.

III. LEGAL STANDARD

Under Federal Rule of Civil Procedure 56(a), the Court must grant a party's motion for summary judgment if there are no genuine issues of material fact in dispute and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett , 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (describing material considered in a Rule 56 analysis). Partial summary judgment is also permissible. See Fed. R. Civ. P. 56(a) (allowing summary judgment for "the part of each claim or defense"). A material fact is one that "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute of material fact is genuine if " 'a reasonable jury could return a verdict for the nonmoving party' on the question." Woods v. DaimlerChrysler Corp. , 409 F.3d 984, 990 (8th Cir. 2005) (quoting Anderson , 477 U.S. at 248, 106 S.Ct. 2505 ). The Court must give the non-moving party all reasonable inferences from the facts presented. Munz , 28 F.3d at 798. The Court does not "weigh the evidence or attempt to determine the credibility of the witnesses," Kammueller v. Loomis, Fargo & Co. , 383 F.3d 779, 784 (8th Cir. 2004), and instead must only "determine whether a dispute about a material fact is genuine," Quick v. Donaldson Co., Inc. , 90 F.3d 1372, 1377 (8th Cir. 1996).

To defeat a motion for summary judgment, the non-moving party "may not rest upon the mere allegations or denials of his pleading, but ... must set forth specific facts showing that there is a genuine issue for trial." Anderson , 477 U.S. at 248, 106 S.Ct. 2505 (omission in original); see also Anda v. Wickes Furniture Co. , 517 F.3d 526, 531 (8th Cir. 2008) ("In order to establish the existence of a genuine issue of material fact, '[a] plaintiff may not merely point to unsupported self-serving allegations' " (alteration in original) (quoting Bass v. SBC Commc'ns, Inc. , 418 F.3d 870, 873 (8th Cir. 2005), abrogated on other grounds by Torgerson v. City of Rochester , 643 F.3d 1031, 1058 (8th Cir. 2011) ) ).

IV. DISCUSSION

The Court first considers Plaintiff's negligent infliction of emotional distress claim (Count V). ECF No. 46 ¶¶ 225-34. Because Plaintiff does not resist Defendants' motion for summary judgment on this claim, see ECF No. 111 ¶ 6, the Court dismisses it. The Court next considers Plaintiff's claim for declaratory judgment (Count VIII). ECF No. 46 ¶¶ 248-52. The Court finds Count VIII does not state an independent basis for relief, but that the remedy of declaratory judgment may be applied to the other claims if applicable.

The Court then turns to Plaintiff's Title IX claim (Count I). Id. ¶¶ 169-88. The Court grants Defendants' motion for summary judgment for Count I under Plaintiff's Title IX erroneous outcome and deliberate indifference theories, but denies Defendants' motion for summary on Plaintiff's Title IX claim under his selective enforcement theory. The Court then analyzes Plaintiff's ADA claim (Count VI), id. ¶¶ 235-40, and grants Defendants' motion summary judgment on that claim. Finally, the Court turns to Plaintiff's state law contract claims (Counts III, IV, and VII). Id. ¶¶ 203-24, 241-47. The Court finds Plaintiff's estoppel and covenant of good faith and fair dealing claims are subsumed by his breach of contract claim. The Court grants summary judgment to Defendants on some, but not all, of Plaintiff's breach of contract claims.

A. Negligent Infliction of Emotional Distress (Count V)

Defendants request summary judgment as to Plaintiff's negligent infliction of emotional distress claim. ECF No. 99 ¶¶ 14-16. Plaintiff does not resist Defendants' motion as to this claim. ECF No. 111 ¶ 6 ("Plaintiff states that he will not proceed further with the claim for negligent infliction of emotional distress."). Consequently, the Court dismisses Count V.

B. Declaratory Judgment (Count VIII)

In Count VIII, Plaintiff asserts an independent count for declaratory judgment. ECF No. 46 ¶¶ 248-52. Defendants move for summary judgment on Plaintiff's claim, asserting the Declaratory Judgment Act, 28 U.S.C. § 2201, "does not create any new substantive right but rather creates a procedure for adjudicating existing rights." ECF No. 104 at 40 (quoting W. Cas. & Sur. Co. v. Herman , 405 F.2d 121, 124 (8th Cir. 1968) ). At the hearing on Defendants' motion, Plaintiff's counsel conceded the declaratory judgment he seeks cannot form the basis of a separate count. Mot. Summ. J. Hr'g Tr. 22:23-23:2, ECF No. 146. Consequently, to the extent Count VIII asserts an independent claim for relief, the Court grants Defendants' motion.

The Court notes the relief Plaintiff requests in Count VIII references Plaintiff's other substantive claims. See ECF No. 46 ¶¶ 248-49 (referencing Plaintiff's previous counts and requesting declaratory judgment based on his assertion that "Drake has committed numerous violations of the Parties' contracts and of federal and state law"). Furthermore, Plaintiff reiterates these requests in his Prayer for Relief. Id. at 59-60. Consequently, although Count VIII fails to state an independent claim for relief, both Count VIII and Plaintiff's Prayer for Relief identify some permissible remedies for Plaintiff's other substantive counts. Specifically, all of Plaintiff's requested relief, except a declaration that "Drake's Code is unconstitutional as applied" may, if appropriate, be applied to the applicable counts discussed below.

C. Title IX Claims (Count I)

In Count I, Plaintiff brings a claim under Title IX based on his disciplinary proceeding and resulting expulsion as well as Defendants' failure to investigate Plaintiff's complaint of alleged sexual assault by Jane Doe. See ECF No. 46 ¶¶ 180-81, 185.

Title IX claims based on alleged gender discrimination in disciplinary proceedings may be analyzed under the erroneous outcome, deliberate indifference, or selective enforcement theories. See Roe v. St. Louis Univ. , 746 F.3d 874, 882 (8th Cir. 2014) (describing deliberate indifference); Yusuf v. Vassar Coll. , 35 F.3d 709, 715 (2d Cir. 1994) (describing erroneous outcome and selective enforcement). For the reasons set forth below, the Court determines Plaintiff has not identified a genuine dispute of material fact as to whether gender bias caused an erroneous outcome in his disciplinary proceeding. Plaintiff also has not identified a genuine dispute of material fact as to whether Defendants were deliberately indifferent toward Plaintiff by failing to investigate his claim that Jane Doe sexually assaulted him. Plaintiff has identified a genuine dispute of material fact as to whether gender affected Defendants' decision to selectively enforce a disciplinary process. The Court thus grants Defendants' motion for summary judgment as to Plaintiff's Title IX claims under the erroneous outcome and deliberate indifference standards but denies Defendants' motion for summary judgment for Plaintiff's Title IX claims under the selective enforcement standard.

1. Erroneous outcome

In order to establish a violation of Title IX under the erroneous outcome theory, a plaintiff must show: 1) evidence illustrating an "articulable doubt" as to the accuracy of the outcome of the proceeding; and 2) particular circumstances showing gender bias was a motivating factor in the erroneous outcome. Doe v. Miami Univ. , 882 F.3d 579, 592 (6th Cir. 2018) ; see Yusuf , 35 F.3d at 715 ; see also Doe v. Univ. of St. Thomas , 240 F.Supp.3d 984, 990 (D. Minn. 2017). To show an articulable doubt, a plaintiff may point to "particular evidentiary weaknesses behind the finding of an offense such as a motive to lie on the part of a complainant or witnesses, particularized strengths of the defense, or ... particular procedural flaws affecting the proof." Yusuf , 35 F.3d at 715. A plaintiff may illustrate gender bias by identifying "statements by members of the disciplinary tribunal, statements by pertinent university officials, or patterns of decision-making that also tend to show the influence of gender." Id.

"As a general rule, Title IX is not an invitation for courts to second-guess disciplinary decisions of colleges or universities." Univ. of St. Thomas , 240 F.Supp.3d at 989. Rather, "Title IX should be construed to give '[s]chool administrators ... the flexibility they require' to initiate a reasonable disciplinary response." Id. at 990 (alteration and omission in original) (quoting Davis ex rel. LaShonda D. v. Monroe Cty. Bd. of Educ. , 526 U.S. 629, 648-49, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999) ); see also Haidak v. Univ. of Mass. at Amherst , 299 F.Supp.3d 242, 269 (D. Mass. 2018) (granting summary judgment to the defendant and holding the uni