PHILADELPHIA – A federal appellate court has upheld a lower court’s decision to grant summary judgment to Dickinson College, finding that the school did not violate Title IX in its investigation of a student’s sexual assault complaint.
On Aug. 16, a panel trio from the U.S. Court of Appeals for the Third Circuit ruled in favor of defendant Dickinson College and against plaintiff Rose McAvoy, with Judge Michael A. Chagares authoring the Court’s opinion.
“Dickinson is a private liberal arts college of about 2,100 students located in Carlisle, Pennsylvania. McAvoy began her studies as an undergraduate student at Dickinson in fall 2015. TS began at Dickinson two years later, in 2017. The two became friends through a shared interest in a cappella singing and theater. On Oct. 30, 2017, McAvoy and TS attended an evening school event together, then went for a walk and entered an empty room in a Dickinson building. The two began kissing and ‘making out.’ McAvoy initially reciprocated, but became increasingly nervous and unsure, as TS lay on top of her. She asked him to stop and he did so; the two then lay on the floor together, cuddling and talking. McAvoy tried to express to TS that she did not want to continue being sexually intimate. Although she thought she had made herself understood, the making out resumed and TS placed his hand on her breast,” Chagares said.
“McAvoy removed his hand, but he continued to kiss her, then moved back on top of her and put his hand inside her shirt. At some point, McAvoy stopped reciprocating. She kept trying to move TS’s hand away, but he lifted her shirt up anyway. McAvoy began to panic and felt like she couldn’t breathe. She started to try to say his name and something along the lines of ‘can we stop’; she eventually said ‘can we —‘and TS stopped and she got out from underneath him. McAvoy told TS that she liked him but felt the encounter was ‘a lot.’ App. 210. She kissed him a final time out of a feeling of obligation and walked him home. McAvoy felt terrible about the experience and blamed herself that it happened. She also felt sore and bruised for several days as a result of TS pushing himself on top of her.”
McAvoy reported the incident to a Dickinson professor the day after it happened, on Oct. 31, 2017, although she did not identify TS by name. The professor reported the assault to the Title IX office that day. A Dickinson dean emailed McAvoy the following day, advising her about available resources, notifying her of the availability of an advisor or advocate, offering to meet with her and providing her information including a link to Dickinson’s Sexual Harassment and Misconduct Policy.
After meeting with Dickinson’s Title IX Coordinator on two occasions, McAvoy disclosed TS’s name and requested a formal Title IX investigation into the assault.
Dickinson issued McAvoy and TS letters in the next few days, formally stating that the investigation had been initiated. McAvoy’s letter advised her that, consistent with Dickinson’s Policy, that Dickinson would “make every effort to complete the investigation and resolution process within 60 days, but would balance this objective against the principles of thoroughness and fundamental fairness.”
The school made accommodations for McAvoy, and permitted her to make alternate academic, residential and extracurricular schedule changes, when necessary.
“Meanwhile, during the entirety of spring 2018, Dickinson’s investigation of McAvoy’s sexual assault claim was ongoing. Dickinson employed two outside investigators, who met with McAvoy and [her advisor, Josh] Eisenberg for the first time on December 8, shortly after McAvoy disclosed TS’s name. The investigators interviewed McAvoy three times and TS twice, in addition to seven other individuals. The investigators also obtained and reviewed relevant documents. The investigation took longer than the 60-day target for resolution set forth in Dickinson’s Policy. Despite Dickinson’s statement that the 60 days ‘may be extended for good cause with written notice to the parties of the delay and the reason for the delay’, McAvoy was not given a written explanation about the delay apart from the initial letter indicating the process could take longer because it began just before the winter break,” Chagares continued.
“McAvoy did not remain entirely uninformed, however. She met with the investigators on December 8, February 15, and February 28. Additionally, while the investigation was underway, she would ask Eisenberg for information and he would inquire and then advise her of the status. McAvoy did not recall any time that she reached out to Eisenberg or Bylander and did not receive a response from them. In March, [Title IX Coordinator Joyce] Bylander wrote to McAvoy and stated that she was ‘sorry this process is taking so long.’ The investigators provided an initial report to the parties in April 2018. Both McAvoy and TS submitted written responses to the initial report. Dickinson advised McAvoy that the investigators were considering the responses and would issue a final report soon. The final report, which is 40 pages long, was issued on May 1, 2018, nearly five months after McAvoy requested the investigation. The report concluded that a preponderance of the evidence supported a finding that TS had subjected McAvoy to sexual touching after she withdrew her consent and thus had engaged in sexual assault.”
After a review panel was convened to determine whether to affirm or reject the investigation’s findings and consider the imposition of sanctions, they sent McAvoy a letter on June 20, 2018.
“The letter advised McAvoy that the review panel had unanimously concluded that the investigation had been fair, impartial and reliable, and that a preponderance of the evidence supported the investigators’ conclusion that TS had engaged in sexual assault in violation of Dickinson’s Sexual Harassment and Misconduct Policy. McAvoy was informed that she could review the report and submit evidence for the review panel to consider before it imposed sanctions. McAvoy submitted materials in response, which were sent to the review panel. Katharina Matic, Dickinson’s new Title IX coordinator, advised McAvoy that she should expect a decision in early July and offered her continued access to support,” Chagares stated.
“Dickinson issued its sanction letter on July 3. Dickinson imposed a semester of probation on TS. It also rescinded the no-contact directive, although it reminded the parties not to have contact with each other. McAvoy and TS both appealed the panel’s determination. On July 31, the appeal officer issued a final decision upholding the review panel’s sexual assault decision, concluding that probation was an appropriate sanction, and additionally directing that TS must meet with the Title IX coordinator to review the definition of consent. The sanction on TS ultimately was not carried out. TS instead chose to leave Dickinson at the end of spring 2018 and did not return. McAvoy remained at Dickinson. She graduated two years later, in spring 2020, later than she originally expected.”
McAvoy filed the instant civil action challenging Dickinson’s response to her assault claim on July 31, 2020, asserting four causes of action: (1) Hostile environment due to deliberate indifference to sexual assault in violation of Title IX; (2) Gender discrimination due to deliberate indifference to sexual assault in violation of Title IX; (3) Negligence; and (4) Breach of contract, due to a failure to abide by Dickinson’s internal procedures for investigating sexual assault.
The District Court dismissed McAvoy’s negligence claim on Dickinson’s motion to dismiss and after the close of discovery, Dickinson moved for summary judgment on the remaining claims – which the District Court granted, leading McAvoy to appeal to the Third Circuit.
On appeal, McAvoy argued the District Court erred in its determinations that she “did not produce sufficient evidence that Dickinson acted with deliberate indifference in response to her Title IX complaint” and had “failed to produce sufficient evidence to establish a genuine dispute of material fact that she suffered damages to support a claim for breach of contract.”
However, the Third Circuit disagreed with the plaintiff’s contentions.
“McAvoy was notified in writing on the first day of the investigation that the process would likely go beyond 60 days because it was initiated just before the holidays, when the school would be closed. Dickinson made clear at that time that the length of the investigation process would reflect the need to balance the thoroughness and fairness of the process against the 60-day objective. McAvoy also was told that the Title IX coordinator would always be available to her to provide information and updates about the process. The investigation itself was a significant undertaking: it required hiring outside investigators, numerous interviews, a lengthy report and a review panel process to ensure the fairness of the proceeding,” Chagares said.
“During that time, McAvoy never experienced an occasion when Bylander and Eisenberg were not available to her, and Eisenberg updated her with information every time she asked. McAvoy met with the investigators in December and February, which would have given her a sense of the investigation’s progress, and Dickinson notified both McAvoy and TS of the initial results of its investigation by April, while school was still in session, allowing both parties to review and respond to that initial report before a final report was completed. After the final report, McAvoy participated in the review panel process and sanction stage of the proceeding.”
Though admitting Dickinson “could have better communicated with McAvoy about aspects of the investigation process – particularly in the period leading up to its initial draft report”, Chagares added that “Dickinson did not ignore McAvoy or her claims during that time, providing her services and accommodations throughout spring 2018.”
The Third Circuit also found that McAvoy’s breach of contract claim was properly dismissed.
“In addition to her Title IX claim, McAvoy contends that Dickinson breached its contract with her by failing to abide by the terms of its Policy, specifically the 60-day timeline and written notice provisions. Pennsylvania law recognizes that the relationship between a student and a private educational institution is contractual in nature, so a student may bring a breach of contract action if the institution is claimed to have violated that contract. To prevail on her breach of contract claim against Dickinson, McAvoy was required to establish the existence of a contract, its breach and resulting damages. Assuming without deciding that McAvoy satisfied the other elements for a breach of contract claim, summary judgment was appropriate because she did not produce evidence that she suffered damages caused by the claimed breach,” Chagares stated.
“Even accepting that Dickinson’s failure to notify McAvoy in writing constituted a breach, McAvoy failed to establish that the lack of notice caused her claimed injuries (that is, continuing to encounter TS during spring 2018 while the investigation was ongoing and delaying her graduation). There is ample evidence that McAvoy was made aware of the investigation’s progress during its pendency, while there is no evidence that the asserted injuries were caused by a lack of written notice. We therefore agree with the District Court that summary judgment was appropriate. For all of the foregoing reasons, we conclude that the District Court properly granted summary judgment to Dickinson on McAvoy’s Title IX and breach of contract claims. We therefore will affirm the judgment of the District Court.”
U.S. Court of Appeals for the Third Circuit case 23-2939
U.S. District Court for the Middle District of Pennsylvania case 1:20-cv-01327
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com