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Doe v. University of Notre Dame

United States District Court, N.D. Indiana, South Bend Division

May 8, 2017

JOHN DOE, Plaintiff,



         A senior at the University of Notre Dame who brings this action as “John Doe” was dismissed from the university this spring, mere weeks before graduation, after being found guilty of violations of four Notre Dame Standards of Conduct. John now challenges his dismissal from Notre Dame on a number of legal theories, but only two of those theories are presently before me on his motion for a temporary restraining order and a preliminary injunction-a breach of contract claim and a claim under Title IX. The relief he seeks at the moment is narrow. He is not seeking the conferral of his degree at this time; he is not seeking to participate in the upcoming commencement ceremonies; and he is not seeking to set aside the other components of the discipline meted out by Notre Dame. Instead, John only seeks an order instructing Notre Dame to allow him to take the two final examinations that he needs to complete his coursework for the semester. Exam week begins today and runs through May 12, so time is of the essence.

         Preliminary Injunction Standards

         John's motion is for both a temporary restraining order and preliminary injunction. Parties (and judges) often have difficulty distinguishing between the two similar remedies. “‘The essence of a temporary restraining order is its brevity, its ex parte character and ... its informality.'” Wheeler v. Talbot, 770 F.3d 550, 556 (7th Cir. 2014) (Ripple, J., dissenting), quoting Geneva Assur. Syndicate, Inc. v. Med. Emergency Servs. Assocs. S.C., 964 F.2d 599, 600 (7th Cir. 1992). Notre Dame has been served with the complaint and the motion and has responded in writing. Notre Dame has also appeared twice in my court on the motion, including for a full-blown evidentiary hearing. In these circumstances, I consider the matter to be a request for a preliminary injunction rather than a temporary restraining order.

         To obtain a preliminary injunction, John Doe must demonstrate that (1) he will suffer irreparable harm in the period before the case is decided on the merits; (2) traditional legal remedies are inadequate; and (3) his claim has some likelihood of success on the merits. Jones v. Markiewicz-Qualkinbush, 842 F.3d 1053, 1058 (7th Cir. 2016). “If the plaintiffs make this showing, we then will weigh the factors against one another, assessing whether the balance of harms favors them or whether the harm to other parties or the public is sufficiently weighty that the injunction should be denied.” Id. The Seventh Circuit has “said repeatedly that the plaintiff's chances of prevailing need only be better than negligible.” D.U. v. Rhoades, 825 F.3d 331, 338 (7th Cir. 2016). And there is an inverse sliding scale as between a plaintiff's likelihood of success and his irreparable harm: “even though a plaintiff has less than a 50 percent chance of prevailing on the merits, he may nonetheless be entitled to the injunction if he can demonstrate that the balance of harms would weigh heavily against him if the relief were not granted.” Id., quoting Curtis v. Thompson, 840 F.3d 1291, 1296 (7th Cir. 1988).

         Notre Dame has invoked the notion of an “affirmative” injunction, which some courts call a “mandatory” injunction. This term signifies an injunction that compels an action rather than merely maintains the status quo. Graham v. Medical Mut. of Ohio, 130 F.3d 293, 295 (7th Cir. 1997). Given that the status quo is that John is currently dismissed from the university, an injunction compelling Notre Dame to permit him to sit for his two final exams is technically an affirmative injunction, although just barely so. It won't cost Notre Dame a red cent to allow John to sit for the two exams. So while I take seriously the Seventh Circuit's admonition that a “preliminary injunction ordering the defendant to take an affirmative act rather than merely refrain from specific conduct is ‘cautiously viewed and sparingly issued, '” Knox v. Shearing, 637 Fed.Appx. 226, 228 (7thCir. 2016), quoting Graham, 130 F.3d at 295, the “affirmative” nature of what is being asked of Notre Dame is just not that burdensome. In all events, in the Seventh Circuit, the standards for obtaining such an affirmative injunction are the same as in any other case, but the balance of hardships factor simply “takes on heightened importance.” Kartman v. State Farm Mut. Auto. Ins. Co., 634 F.3d 883, 892 (7th Cir. 2011). This is in recognition that “[a] mandatory injunction imposes significant burdens on the defendant and requires careful consideration of the intrusiveness of the ordered act[.]” Id.

         Notre Dame cites cases from the Ninth and Tenth Circuits that apply different and more stringent standards for the grant of an affirmative injunction, such as that a court should deny such relief “unless the facts and law clearly favor the moving party.” Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015) (internal quotations marks and citations omitted). But of course I will apply the standards enunciated by the Seventh Circuit, which does not appear to embrace this particular heightened standard for mandatory injunctions.

         Factual Background

         The facts set forth below relevant to the preliminary injunction analysis are either undisputed or have been established by a preponderance of the evidence in the preliminary injunction proceedings. John Doe and Jane Roe, both seniors this year at Notre Dame, began a dating relationship in the fall of 2015. During the summer of 2016, John developed serious depression while doing an externship in New York City and that led to thoughts of suicide. As John's depression worsened, his relationship with Jane became more tumultuous, as the couple “broke up” and reconciled more than once. By the Fall of 2016, John began making frequent statements about wanting to commit suicide and he repeatedly communicated this desire to Jane via text message. It is these text messages that would come back to haunt John five months later in his disciplinary hearing. But the relationship between John and Jane seems to have continued throughout the tumult. Indeed, the record is replete with a steady stream of text messages going back and forth between John and Jane even after she first reported him to the University. Some involve talk of mental health issues and, indeed, suicide, but many do not.

         On October 14, 2016, Jane met with Heather Ryan, Notre Dame's Deputy Title IX Coordinator in the Division of Student Affairs. Jane reported that she was concerned about John's safety because of the messages he had been sending her about wanting to kill himself. She was bothered by the volume of texts she was receiving and felt that they were manipulative, but at that point Jane was principally concerned about John receiving help. By going to the Title IX Coordinator, whether she knew it or not, Jane was invoking Notre Dame's policies and process relating to complaints of sexual harassment. In response, the University referred Jane to a number of resources, and assigned Jane a Resource Coordinator, Annie Eaton, as a contact for support relating to her issues with John. Eaton works generally as a “Care Consultant” at the University, a person who works with students experiencing difficulty or needing assistance with resources.

         Jane's October 14 report to Ryan also prompted Associate Vice President Dr. Bill Stackman to meet with John and identify ways John could receive assistance if he was considering harming himself. The record doesn't reflect what mental health resources John was offered or apprised of, but Ryan's focus-and that of the Administrative Investigation in Notre Dame's process-is on behavior, not assessment of psychological or emotional causes for behavior. In his email requesting a meeting with John, Dr. Stackman requested that John break off all forms of communication with Jane. This is a standard step for the administration to take when a student registers a complaint about interaction with another student.

         Notre Dame's student handbook, known as du Lac, contains Community Standards and Standards of Conduct and is colloquially known as the “Red Book.” The Red Book is issued annually, and in it, Notre Dame compiles the University's policies and procedures regarding sexual harassment, a category which includes sexual assault, sexual misconduct, dating violence, domestic violence, stalking and conduct that creates a hostile environment. Ryan concluded that John's behavior, as reported by Jane, could be a violation of these policies.

         Jane made it clear to Ryan that she did not want a formal Administrative Investigation, but Jane did not have the final say on the matter. Ryan referred the matter to the University Tripartite Board, which makes a determination whether an investigation will be pursued even if it is against the complainant's wishes. After considering factors including John's lack of any disciplinary history, the absence of threats of violence to the complainant, and that the parties were not minors, the Tripartite Board agreed to Jane's request that an Administrative Investigation not proceed at that time. Jane was notified of that decision, and advised that she had six months, to April 27, 2017, to notify Ryan if she wished to initiate an Administrative Investigation of the matters she had reported.

         As noted above, the persistent contact between John and Jane continued after the initial complaint by Jane. What we now know, although it wasn't revealed in Notre Dame's Administrative process, was that Jane and John continued a nearly daily discussion with one another. On October 31st they planned to meet up after work. [DE 39 at 4.] She told him to “Come overrrrrr.” [Id.] He proposed that they “take a nap” and she responded that “I‘M SO PUMPED.” [Id. (emphasis in original).] The following week, on November 7th, Jane asked John if he could sleep over. [DE 39 at 5.] Jane then implored John to “Come to champaign” (sic), which seems to have been a reference to him meeting her in Champaign, Illinois. [Id.] She also offered to meet him in Chicago. [Id.] Jane then asked John to come over that day because “she was having a really bad week already and I just wanna cuddle.” [DE 39 at 7-8.] The following day they planned to get together again. Jane asked John “where you at (sic)” and he responded that he would “be there in 15 minutes.” [DE 39 at 9.] Jane's response demonstrated that she was happy to be seeing him. She said “yayyy.” [Id.] The next day they planned to meet up again at Chipotle around the noon hour. [Id.] And then later that night they must have planned another get-together because Jane told John that she was coming “to pick him up.” [Id. at 9-10.] A week later, on November 15, Jane told John to “sleep overrrrrrrrrrr.” [Id. at 10.] She later had a change of mind and cancelled because she needed to study and he responded that that was no problem. [Id. at 10.] John told her that he loved her and Jane responded that “I LOVE YOU TOO.” [Id. at 11 (emphasis in the original).]

         This cozy back and forth was never revealed during Notre Dame's investigation of John. It only came to light once this litigation was filed. But in any event, less than two weeks after Jane and John were planning sleepovers and expressing their love for one another, Jane evidently had a change of heart and decided to go forward with the complaint she previously lodged against John. The complaint was re-instituted on November 28, and the University issued a No Contact Order by letter to both parties dated the following day, November 29. Pursuant to that Order, both John and Jane were directed not to have contact with one another. The University considers the November 29 letter to have served as the “notice of charges” to John, but rather than any specific allegations, it merely advises John that “the incident alleged may be a violation of the University's policies related to sexual assault, sexual misconduct, dating and domestic violence, stalking, and/or conduct that creates a hostile environment.” [Def. Exh. 118 at 1.]

         An important thing happened after the No Contact Order was issued. John deleted Jane from his phone and, in the process, also permanently deleted the hundreds of text messages that they had sent to one another. Jane took a different tack. She decided to retain all of the text messages, and candidly this gave her the upper hand because it enabled her to control what texts would be produced and considered in the administrative process.

         After Jane re-instituted the complaint, Heather Ryan met separately with both John and Jane, who were offered the opportunity to submit documentation to be considered in the process. An investigator, Lynn Kalamaros, was assigned to the case. As just described, John had no text messages to share with the Investigator Kalamaros because he had deleted them from his phone. Jane, on the other hand, provided Kalamaros with some, but not all, of the text exchanges between the two. The ones she shared with Kalamaros placed John in a very bad light and without context. Kalamaros, for example, had no idea that Jane had invited John to Champaign two weeks earlier, that they were having sleepovers and meeting up for “naps, ” or that Jane expressed her love for John in no uncertain terms.

         The first thing Kalamaros did was schedule a meeting with John as the respondent in the matter. Both parties were advised of the opportunity to identify witnesses who might be interviewed in the Administrative Investigation. John and Jane were told that under the University's policies, they could have a “non-speaking” advisor in attendance with them at any hearing and other meetings, but third-party representation is not allowed to actively participate in the process.

         Notre Dame's process is for the investigator, in this case Investigator Kalamaros, to do an investigation of the charges and then submit an Investigative Summary Report to Ryan. Ryan then reviews the report to determine whether it appears that any Notre Dame policy may have been violated. If she thinks so, Ryan again consults the complainant about whether to move forward with the process. The next step is referral of the matter to Notre Dame's Office of Community Standards, which conducts a hearing on the charges of misconduct.

         Shortly after the re-institution of the complaint by Jane, things started to really get nasty. On November 30, Jane reported to Ryan that John had supposedly followed her to a class, and Ryan viewed this as a potential violation of the No Contact Order. Similarly, on February 3, 2017, John sent Ryan an email in which he alleged that Jane herself had violated the No Contact Order by following him and taking pictures of him with her cell phone after an initial contact in a stairwell that was entirely inadvertent on his part. There was yet another incident wherein John was hauled out of class by University police officers based on an allegation by Jane that he had violated the No Contact Order in an academic building. But credible testimony at the preliminary injunction hearing from another student established that the interaction between John and Jane that day was merely a happenstance encounter making the claimed violation of the No Contact Order utterly spurious.

         For some of these complaints, specifically the complaint from February 3rd, John and Jane reversed roles. John was the complainant and Jane the respondent. Yet it appears that Ryan never responded to John with the same references to resources as she had provided to Jane as a complainant.

         The pattern of charge and counter-charge continued into mid-February. Jane made an allegation of retaliation by John involving sharing her confidential medical information with other people, and an administrative investigation was opened. Shortly thereafter, John also lodged another complaint about Jane. In mid-April, John used an online process to submit reports that Jane had violated the No Contact Order and had intimidated witnesses in the disciplinary process. Heather Ryan confirmed receipt of those complaints and initiated an investigation by meeting with the individuals who might have been intimidated.

         Notre Dame sometimes consolidates the handling of countercomplaints between parties. That seems like the sensible thing to do when back-and-forth complaints are made by people in a long-term relationship. In such a situation, there is the possibility that the parties are abusing the process. In any event, in this instance, Notre Dame did not consolidate the dueling complaints between John and Jane, and the allegations against her were largely omitted from the Investigative Summary Report and the Administrative Hearing of John.

         In the meantime, action was occurring on another front. On November 30th, Jane obtained an order of protection from the state court in St. Joseph County, and provided a copy to Ryan that day. Jane initially asserted that the Circuit Court order required John to stay off campus entirely. But later an amended Ex Parte Order for Protection issued January 30, 2017 expressly provides that “Respondent is to be allowed to continue attending Notre Dame University until further action from the Court.” [Pltf. Exh. 26, p.2.] At some point in time in the state court litigation, John requested discovery. He was seeking the entirety of his text exchanges with Jane. Jane balked, and instead of producing the text stream, she decided to dismiss her ...

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