John Doe v. University of Denver, Et. Al.: August 2017

Case 1:17-cv-01962-KMT Document 3 Filed 08/15/17 USDC Colorado Page 1 of 62
UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO
Case No. 17-cv-1962
JOHN DOE,
Plaintiff,
-against-
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, SIRI SLATER,
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 Doe1 (hereinafter referred to as Plaintiff or John Doe), by his attorneys
Nesenoff & Miltenberg, LLP and Michael Mirabella P.C., as and for his Complaint, respectfully
alleges as follows:
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Plaintiff herewith files a motion to restrict access to information contained within the Complaint.
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 Chopp (Defendant Chopp), Kristin Olson (Defendant Olson), Jean McAllister
(Defendant McAllister), Siri Slater (Defendant Slater), 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 Roe.
2. In addition to the damages sustained by John Doe, including his inability to
continue his education at University of Denver and receive his degree, John Doe has sustained
damages to his future education and career prospects as a result of the University finding John
Doe responsible for an offense he did not commit and his dismissal from the University.
Additionally, as a result of Defendants actions and inactions, John Doe has suffered physical,
psychological, emotional and reputational damages, economic injuries and the loss of
educational and career opportunities.
3. 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.
4. A non-exhaustive list of Defendants wrongful actions include the following: (i)
Defendants failed to provide John Doe proper notice of the charges; (ii) Defendants evidenced a
gender bias against John Doe as the male accused of sexual misconduct throughout the
investigative process; (iii) Defendants made assessments of credibility and evidentiary weight
with respect to each party and witness without any ascertainable rationale or logic; (iv)
Defendants failed to afford John Doe the requisite presumption of innocence required by a
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preponderance of the evidence standard; (v) Defendants failed to afford John Doe a hearing
before an impartial decision maker; (vi) Defendants deprived John Doe of the opportunity to
confront and question his accuser; (vii) Defendants failed to afford John Doe the opportunity to
question any witnesses against him; and (viii) Defendants failed to protect him from a threat of
violence and retaliation, all of which demonstrated substantial procedural errors in violation of
Title IX, the Fourteenth Amendment and other federal and/or state laws.
5. When Defendants subjected John Doe to disciplinary action, they did so in an
arbitrary and capricious way, deprived him of due process and discriminated against him because
of his gender. Defendants failure to adherence to the University of Denvers own guidelines and
regulations which were unfair and biased coupled with Defendants deviation from otherwise fair
portions of said procedures is likewise improper and discriminatory. Additionally, the University
of Denvers guidelines and regulations, which they did follow 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.
6. John Doe therefore brings this action to obtain relief based on causes of action for
violations of Title IX of the Education Amendments of 1972, violation of 14th Amendment
Procedural Due Process, breach of contract and other state law causes of action.
THE PARTIES
7. Plaintiff is a natural person, citizen of the United States, and resident of the State
of Ohio. During the events described herein, Plaintiff was a student at the University of Denver
and resided on the Universitys campus in Denver, Colorado.
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8. 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.
9. 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.
10. 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.
11. 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.
12. 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.
13. Upon information and belief, Defendant Slater is an individual residing in the
State of Colorado and was an investigator with the OEO at the University of Denver at all
14. 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
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15. John Doe and Defendants University of Denver, Board of Trustees, Chopp,
Olson, McAllister, Slater and Butler are sometimes hereinafter collectively referred to as the
Parties.
JURISDICTION AND VENUE
16. 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) John Doe 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.
17. This Court has personal jurisdiction over Defendant University of Denver (DU
or the University) on the grounds that it is conducting business within the State of Colorado.
18. 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.
19. 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.
20. This Court has personal jurisdiction over Defendant Olson on the grounds that she
was acting as an agent of University of Denver at all relevant times herein.
21. 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.
22. This Court has personal jurisdiction over Defendant Slater on the grounds that she
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23. This Court has personal jurisdiction over Defendant Butler on the grounds that he
24. 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. AGREEMENTS, REPRESENTATIONS, COVENANTS & WARRANTIES
BETWEEN PLAINTIFF AND UNIVERSITY OF DENVER
25. Plaintiff John Doe was accepted to the University of Denver as a member of the
class of 2019. Upon his acceptance, the University of Denver provided John Doe with copies of
its school policies, including the University of Denvers Office of Equal Opportunity (OEO)
Procedures (the Procedures), the 2015-2016 and 2016-2017 editions of which are available on
the Universitys website. See, http://www.du.edu/equalopportunity/complaints/index.html (Last
accessed, July 31, 2017).
26. 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. Procedures, Article (III)(A). 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. Office of Equal
Opportunity Procedures 2015-2016, p. 4.
27. University of Denvers Office of Equal Opportunity Procedures, in conjunction
with the University of Denver Honor Code and Student Conduct Policies and Procedures set
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forth the procedures 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.
28. 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 consent; by
force, or coercion, or threat; or where that individual is
incapacitated.
29. 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.
30. A complaint that alleges a violation of the Universitys policies related to
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. (emphasis added).
31. As part of the initial assessment, the Procedures provide the following
accommodations to the complainant:
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;
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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.
32. Where the initial assessment concludes that sanctions may be appropriate, the
University will initiate an investigation. The University will designate an investigator who has
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.
33. 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.
34. Both parties may have an advisor or support person present at any meeting related
to the investigation.
35. 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.
36. 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
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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.
37. 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.
38. 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.
39. 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.
40. 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.
41. 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
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finding of responsibility for violation of the Procedures. The final written report must include the
determination of responsibility and the rationale for the determination.
42. University of Denver, in this Investigation allegedly employed the "dual
investigator model," which allows two individuals 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.
43. 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.
44. If it is concluded that a violation occurred, the investigative findings will be
referred to an Outcome Council.
45. 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.
46. 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.
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47. 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.
48. 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.
49. While the Outcome Council is composed of only three members, a unanimous
vote is not required for a determination of sanctions.
50. Notably, the Procedures explicitly state that violations of the non-consensual
sexual contact provision of these Procedures typically result in a dismissal. (emphasis added).
Thus, the investigators are cognizant of the probable outcome when their investigation report
concludes a respondent has violated the non-consensual sexual contact provision.
51. 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.
52. At this meeting, written notification of the decision will be provided and appeal
options will be discussed.
53. In the event the Outcome Council assesses a suspension or expulsion, the
imposition of sanctions takes immediate effect, regardless of a pending appeal process.
54. Appeals will only be considered in the following circumstances:
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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.
55. An appeal will only be considered if submitted to the appellate officer identified
by the Outcome Council within five (5) calendar days.
56. 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.
57. 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.
58. 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.
59. 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.
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60. 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/her 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/her choice present

throughout the process.
II. JOHN DOE'S INTERACTIONS WITH JANE ROE BEFORE MARCH 5, 2016
61. John Doe first had contact with Jane Roe in the Fall of 2015 when Jane was
standing in the doorway of his room speaking with John's roommate. John entered his room and
said hello to Jane. John next saw Jane in January of 2016 at a house party, and the two began to
speak. After the party, the two walked back to the dorms together with John's arm around Janes
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waist. Jane Roe went back to John's room and the two of them got into bed together. They began
to kiss and both touched each other under their clothing from the waist up. While touching each
other in this intimate manner Jane informed John that she had not had sex before. Jane also made
clear that she did not want to have sex with John that evening. John respected Jane's decision.
The night continued with Jane wanting to spend the night with John. John offered her a pair of
his pajamas and the two spent the remainder of the night in John's bed.
62. The following morning John Doe and Jane Roe went to breakfast together at the
dining hall and ate with Jane's friend. They continued to see each other and Jane Roe confided to
John that he was the first person with whom she wanted to have sex.
63. John and Jane continued to see each other and on the evening of February 2, 2016
the two went to a Colorado Avalanche game together. Following the game, they returned to
campus and the night ended without any romance. Throughout February they spoke less
frequently and did not see each other regularly for the remainder of the month.
III. JOHN DOE AND JANE ROE'S INTERACTIONS ON MARCH 5, 2016
64. On March 4, 2016 John Doe was in his friend's dorm room playing video games.
John consumed approximately eight (8) vodka drinks during the few hours he was in his friends
room. John was intoxicated but was able to appreciate his surrounding and environment. Jane
Roe and her friend, Witness F (JR)2 knocked on the door and then entered the room. Neither
John nor his friends knew how Jane had learned he was in that particular dorm room. Jane
appeared fully coherent and functional when she entered the room. John had no knowledge of
any alcohol Jane may have consumed that evening as he was not with her. Jane requested that
2
Witnesses are referred to by the letter assigned to them by Butler and Slater in the Investigation report. The
witness' initials, as remembered by John when he reviewed an unredacted copy of the report, are also included
parenthetically. It should be noted that the University's policy of redacting all of the names in the file before
providing the records to John has made it impossible to fully understand and analyze the Investigation report.
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John leave with her and John declined. Shortly thereafter, Jane Roe left the room alone. After
Jane left, John Doe's friend, Witness E (AC) opened the door and asked John to step outside for a
moment. John was unaware that Witness E was acting on behalf of Jane Roe. Unbeknownst to
John, Jane had recruited John's friend as a ruse to lure John out of the room.
65. When John left the room to see what Witness E wanted, he observed Jane Roe
standing in the hallway. Jane grabbed John's hand and began to lead him in the direction of her
room. While doing so, she asked John to accompany her to her room and John agreed.
66. John and Jane entered Jane's room which was empty as her roommate was away.
The room had two single beds and some of the lights in the room were on. The two spoke briefly
about their relationship. Both agreed it was worth pursuing. The two began to kiss and, while
doing so, Jane Roe began to take off John's belt. As Jane had some difficulty removing John's
belt he took it off himself as Jane removed her own shirt.
67. Upon advising Jane, who did not objection, John briefly left the room to retrieved
condoms. When John reentered the room, he put the condoms on a desk directly next to the head
of Janes bed. The lights in the room were still on and he did this in front of Jane. The two began
to kiss while sitting on the floor of the room and John removed Janes bra. Jane Roe responded
by assisting John to remove his shirt. The two began to kiss each other and touch each other
about their bodies. As their physical interactions escalated John began to feel ill. He stood up and
walked over to the trash can in the room and vomited inside of the can. John, embarrassed by
this, began to apologize repeatedly to Jane Roe. He also promised he would throw out the
garbage the next morning.
68. John and Jane then moved to Janes bed. John began to feel better and the two
began to kiss again. At this point John removed his boxers and put on a condom. John, however,
was unable to sustain an erection and the condom came off of John's penis. The two continued to
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kiss and the two continued to touch each others bodies This intimate contact resulted in John
obtaining a further erection. At this point, John put on another condom. However, John quickly
lost his erection and he never inserted his penis into Janes vagina. John and Jane discussed the
fact that John drank too much that evening and he did not think he would be capable of having
sex with her. John apologized, put his boxers back on, and the two fell asleep together in her bed.
69. John awoke the next morning, March 5, 2016 when Jane rolled over on the bed
and into his body. Jane, who was still naked, proceeded to get on top of John. John got out of bed
and took off his boxers. He retrieved a condom, unwrapped it and as Jane was watching fm the
bed, he placed the condom on his erect penis. After putting the condom on John rejoined Jane on
the bed.
70. John then laid down on his back and Jane got on top of John's body. Jane began to
move slowly up and down until John's penis began to touch Jane's vaginal area. After less than a
minute had passed, and without John ever fully penetrating Jane's vagina, Jane got off the bed
and grabbed her robe. She indicated she was going to the bathroom, leaving John naked on the
bed and still wearing the condom.
71. After a few minutes Jane had not returned from the bathroom so John removed
the condom, put on his boxers, and waited in bed for Jane to return. After approximately five
more minutes, Jane returned wearing a robe. John began to dress and told Jane that he was
leaving. Jane began to repeatedly ask John to remain in the room and speak with her. John told
her that he wanted to leave. He took the garbage bag that he had vomited into out of the can and
left the room.
72. The next time the two (2) spoke was when Jane called John on the evening of
March 6, 2016. Their conversation was mutually respectful, and during the conversation Jane
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Roe expressly told him that she had decided to have sex with John that morning at one-point
stating, you didn't take anything from me. I want you to know that I gave it to you.
73. Late in the evening of March 7 and the early morning of March 8, Jane Roe sent
John a lengthy text message. Jane's text message focused on two concerns: that John did not
want to finish their conversation that was started after Jane abruptly left the room and entered the
bathroom, and her uncertainty about what happened on Friday night after she led John to her
room.
74. Jane also texted about what had occurred during the morning before John left
Janes room. Jane made clear that she viewed the incident through an entirely different light than
she had during their March 6, 2016 telephone conversation when she did not reference any
nonconsensual conduct and had, in fact, spoken about how it was her decision to attempt to have
sex with him that morning. Jane now stated that she had come to realize that [John] did hurt
(her) and that he stripped (her) of something that wasn't (his) to take. In light of the ambiguity
of this assertion, and how it appeared to contradict her earlier statements when they had spoken,
John immediately responded that he never coerced her and referenced Janes own words from
their first conversation where she stated she willingly gave it to him and that it was her
choice.
75. Jane suggested that this topic should not be discussed via text and immediately
sought to clarify her texts related to how John hurt her. She first wrote, our words shouldnt
be interpreted with our own emotions. We should be acknowledging the actual place that we are
coming from. She then stated, because both of us are mad, we shouldnt be doing this in text
either because reading my texts I don't mean for them to sound the way I know you are probably
taking it. Jane Roe then suggested talking by telephone.
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76. Jane Roe also stated that she had the right to change her mind about her view of
the consensual nature of their intimate encounter. Their exchange, however, also made clear that
they had consensual sex but Jane now regretted sleeping with John. She claimed not to have a
memory of these interactions and texts stating, I was asking you to tell me what happened
because there were marks. Apparently, Jane was referring to alleged scratches and bruises,
which John had not noticed or seen at any time on the evening of March 4th and the morning of
March 5th.
77. At no time did Jane ever accuse John of any misconduct or non-consented sexual
contact during the evening of March 4th. During the conversation John responded, Also, I
know what youre insinuating about Friday. Dont. You invited me to your room, and started
taking your clothes off. We did NOT have sex because I was too drunk to keep it up. So we
didn't do anything until the next day, except make out. (sic?) Jane responded: You assumed
where I was coming from and look at where we are. This is toxic. You assume the worst and run
with it. Bye. Significantly, by the end of the text exchange Jane made clear that she did not
mean for (the texts) to sound the way I know you are probably taking it and that John should
not have assumed the worst based on her questions of him.
78. On March 8, 2016 Jane Roe met with a staff member from the Center for
Advocacy, Prevention, and Empowerment (CAPE).3 Jane informed this staff member that texting
John was such a mistake. The staff member told Jane that she should get a rape kit done and
that Jane likely had a valid Title IX case and a criminal case. Jane Roe stated that, upon
hearing this information her chest started to cave in, and (she) realized that this was a huge
deal.
3
In its literature, the University describes CAPE as supporting survivor healing by providing advocacy and support
for victims of sexual violence, stalking, sexual harassment, and relationship violence.
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79. Jane Roe went to the Denver Health Medical Center that same day.
80. On Thursday March 10, 2016, John was in his room studying for a final exam
that was scheduled for the following day. A woman who announced herself as Jane Roe's mother
entered the room and asked Johns roommate, his roommates girlfriend and another woman to
leave the room. After isolating John in his dorm room, Janes mother stated that Jane wanted to
speak to John. Following this instruction, Janes mother left the room.
81. Jane Roe, upon entering the room, informed John that she had filed an anonymous
report about the events that morning. Jane stated that she was not making a decision about
whether or not she was sexually assaulted, but rather she was letting people around her tell her
she was. John, bewildered by this assertion, confronted Jane and specifically asked her if she
thought John had sexually assaulted her. Once again, Jane stated that she was deferring to other
people's judgment on that point and then threatened John stating that she had a gun with one
bullet and that she had perfect aim. John, was distraught over this threat and immediately
sought guidance from his Resident Advisor (RA) and informed his RA of what Jane had said.
82. On March 23, 2016 Jane Roe met with Natalie Alvarado (Ms. Alvarado), the
Resident Director of Johnson-McFarlane Hall. Jane informed Ms. Alvarado that Jane had
previously spoken to John regarding how she had viewed their interactions and told him that she
was not going to make a report. However, Jane then informed Ms. Alvarado that she had heard
John may have spoken to other people, and particularly his RA, about the fact that they had
consensual sex and not that he had assaulted Jane. Upon learning this information, Jane told Ms.
Alvarado that she was going to file a Title IX report.
83. On March 25, 2016 Jane Roe, met with Defendant McAllister. Nonetheless, Jane
Roe was still undecided about moving forward with an investigation. Defendant McAllister
filled out an Equal Opportunity Intake Form and planned to meet with her again the next week.
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84. On April 11, 2016 Defendant McAllister formally notified Defendants Butler and
Slater that Jane Roe had decided to move forward with an investigation related to the March 6,
2016 incident.
IV. THE INVESTIGATION
85. On April 22, 2016 Defendants Butler and Slater conducted an interview with Jane
Roe, during which she alleged that John Doe digitally penetrating her when she was asleep and
then forcibly putting his penis in her vagina.
86. On April 29, 2016 Defendant Butler, informed Jane Roe that Defendant
McAllister was going to notify John Doe of the Title IX investigation and confirmed with Jane
Roe that Jane had decided not to pursue criminal charges against John Doe.
87. On April 29, 2016, Defendant McAllister sent John Doe written notice that the
Title IX Office was in the process of reviewing a matter in which John was named. The letter
stated, "[s]pecifically, a DU student has reported concerns that you may have engaged in
violations of University Policies related to non-consensual sexual contact." The notice of
investigation did not identify the complainant, the date or location of the alleged incident, the
conduct complained of or the specific policy violations at issue.
88. Defendant McAllister's notice further asserted that "[t]he Office of Title IX acts as
a neutral and objective fact finder during the review process. To ensure this neutral and objective
review of the facts, DU employs two independent Equal Opportunity Investigators, to conduct
these reviews." The notice suggested times that John Doe could meet with Defendant McAllister
to "review our procedures for these reviews and your rights as a student." John met with
Defendant McAllister the following week.
20
89. During his meeting with Defendant McAllister, John Doe inquired about DUs
retaliation policy and whether there would be repercussions as to Jane making a false report.
Defendant McAllister indicated there would not be.
90. Defendant Butler contacted John Doe and set up an interview with him. John Doe
was formally interviewed by Defendants Butler and Slater on May 11, 2016. As John did not
have access to his support person in Denver, he asked whether he could submit a written
statement instead. Defendants Butler and Slater threatened that John could not submit a written
statement unless he answered their questions. Further, Defendants Butler and Slater prohibited
John from calling his support person to participate in the interview by phone.
91. As John Doe was not provided a copy of Jane Roes 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, or the policies he allegedly violated. All John
knew was there was an allegation of non-consensual touching.
92. During this meeting John Doe, informed Defendants Butler and Slater that he
would be finishing his finals on May 26, 2016 and had a flight home on May 27, 2016. John also
told Defendants Slater and Butler that he would be out of the country between June 4 and June
15, 2016 and he would have limited internet access.
93. Upon information and belief, Defendants Butler and Slater interviewed 12
individuals, identified by Jane Roe between April 22, 2016 and June 1, 2016. Jane Roe was
interviewed twice.
94. The witnesses identified by John to the Defendant Investigators, were not
interviewed.
95. On May 23, 2016 Defendant Butler e-mailed John Doe and advised him that the
Preliminary Report would be available by next week at the latest. John responded to Defendant
21
Butler and reminded Defendant Butler of his exam schedule and the fact he would be out of the
country between June 4, 2016 and June 15, 2016.
96. On June 3, 2016 having still not received the Preliminary Report from Defendant
Butler, John again emailed Defendant Butler, reminding him that he would be out of the country.
97. On June 7, 2016 Defendant Slater released the Preliminary Report, while John
was out of the country. In her e-mail to John, she stated she knew he was out of state and
warned him that he could not e-mail the report to anyone nor print the report.
98. On June 10, 2016 John was able to access his e-mail and, for the first time,
realized he had been sent the Preliminary Report. He e-mailed Butler and received an automatic
response e-mail back from Butler indicating that Butler was on a temporary leave of absence and
was not returning until August 1, 2016. John then e-mailed Defendant Slater to once again
inform her of the fact he was out of the country, did not have access to fully view the report, and
was unable to speak with his designated support person to ask questions. At this point Defendant
Slater relented and extended the time he had to review the report to June 22, 2016.
99. Notably, only upon receiving the Preliminary Report on June 7, 2016, after he had
already participated in an interview, did John learn for the first time that the allegations did not
involve any conduct related to his and Janes interactions upon first returning to the room, but
instead involved two specific charges of non-consensual contact: digital penetration and penile
penetration
100. Defendants Investigation Report, dated August 5, 2016, references handpicked
pages of Jane Roes Sexual Assault Nurses Examiners report (SANE) selected by Jane Roe and
provided by her to Defendants Slater and Butler.
101. Defendants Investigation Report, dated August 5, 2016 acknowledges that the
pages of the SANE report provided by Jane Roe to the Investigators were not the complete report
22
and that the Defendants were aware that a complete SANE report would include summaries by
the SANE nurse, the attending physician, and the patients written statement regarding the
source of the injuries. (emphasis added) Defendants Slater and Butler acknowledge that these
pages were never provided to them.
102. Stunningly, Defendants Slater and Butler in the Investigation Report specifically
document that the missing pages may contain additional insight. (emphasis added).
103. On June 17, 2016 John e-mailed Defendants Butler and Slater noting that they had
not interviewed any of his five witnesses nor even included in the report his request that they be
interviewed. John also noted that the medical records provided by Jane were incomplete.
104. On June 22 Defendant Slater responded to John's June 17 e-mail and questioned
the relevance of his witnesses. She categorized TB and GM as witnesses who could merely
confirm that John was drinking at the time, which is not disputed. She also speculated the other
reason John wanted these witnesses interviewed because the two assumed John had sex with
Jane. Notably, Slater utterly ignored John's concerns related to Jane's medical records, evidence
she would later deem instrumental in her decision-making.
105. On July 6, 2016 Defendant Slater e-mailed John, stating she was "interested" in
interviewing his psychologist and requested a release so that she could speak with her. Slater
informed John that she would not interview TB or GM, writing "There is no dispute over the
claim that Jane entered your dorm and led you by the hand to leave." She reiterated that John did
not tell either of them about the sexual encounter. Slater also informed John she would not
interview his mother or family friend as "they have been privy to all the communications that
have taken place during this case.
106. During Defendants investigation Defendants Slater and Butler interviewed Jane
Roes numerous witnesses without requesting summaries or an offer of proof from Jane before
23
interviewing this witness. None of Janes witnesses had firsthand knowledge of the allegations
and they only repeated what Jane herself told them. However, Defendants Slater and Butler
interviewed them but utterly refused to interview the witnesses identified by John.
107. On July 18, 2016 Defendant Slater made the Amended Preliminary Report
available for review. On July 24, 2016 John Doe, informed Defendant Slater that he had
reviewed the Amended Preliminary Report. As his requests for witness interviews and Janes
additional medical records had ended in Defendants Butler and Slaters failure to act, John did
not request any additions.
108. On August 15, having heard nothing from the University, John e-mailed
Defendant Slater inquiring about his case. That same day, Defendant Slater informed John that
the "final report is in the final stage of review."
109. On August 16, 2016, John Doe received the Decision of the OEO, via an e-mail
from Defendant Butler, finding him responsible for Non-Consensual Sexual Contact in violation
of the Universitys policies. The full investigative file and attachments were provided to him that
same day. The full investigative report noted that the active investigation concluded on July
14, 2016.
110. John Doe was advised that an Outcome Council would thereafter be convened in
order to determinate appropriate sanctions.
111. On Thursday, August 18, 2016, John Doe received written notification from
Defendant Olson that the Outcome Council would be convened to determine his sanction. John
Doe was advised that the Outcome Council members would include Kristin Olson, Molly
Hooker, and either Ryan Buller or Matthew Rutherford as the faculty representative. Defendant
Olson then advised him that the Council would be convened on Monday, August 24, 2016
24
(Monday, was actually August 22) and the decision would be relayed to John Doe "via phone"
on Tuesday August 23, 2016.
112. The Outcome Council convened on August 22, 2016. Thereafter, on August 23,
2016, Defendant Olson called John and informed him that he had been dismissed from the school
and that he had been "trespassed from University property." Later that same day, Defendant
Olson issued a Dismissal Letter stating the Outcome Council determined (d)ue to the nature and
severity of (John's) actions, in the interest of restoring the pre-deprivation status of the
complainant, and in order to prevent future re-occurrence of [Johns] demonstrated behavior, the
Outcome Council finds it is necessary to remove [John] from the University 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.
113. John Doe was instructed that he was permitted to file an appeal no later than
August 30, 2016. Not only do DUs Procedures afford an inadequate amount of time to prepare a
comprehensive appeal, but DU 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.
114. Notwithstanding, on August 30, 2016, John Doe submitted an appeal based on the
following grounds: (i) the existence of a procedural error(s) so substantial that it greatly impacted
the findings, responsibility determination, and/or the ultimate outcomes, and (ii) (t)he outcomes
imposed are substantially disproportionate to the severity of the violation; specifically:
Defendants were biased against him as revealed by their failure to

communicate with him and update him on the progress of the
investigation in a meaningful way;
Defendants interviewed numerous witnesses of Jane Roe who, in

essence, simply repeated her version of events rather than having
witnessed anything relevant to the encounter;
25
Defendant's failed to contact the witnesses John Doe submitted and

then did not conduct a meaningful interview with the one witness,
his psychologist, they finally interviewed despite their initial
resistance;
Failed to consider evidence tending to diminish Jane Roes

credibility; and
Overlooked the inconsistencies in Jane Roes statements.
115. Notwithstanding the blatant procedural errors exhibited throughout the
investigation process, Defendants denied John Does appeal and upheld the severe and unjust
penalty of expulsion.
V. THE UNIVERSITY FAILED TO ABIDE BY ITS OWN PROTOCOLS AND

PROCEDURES
A. The University Failed to Meet in Person with John at Critical Points in the
Process as Mandated by University Policy
116. Defendants utilized the dual investigative model during this Investigation.
Although Defendants Slater and Butler were assigned to this matter, as of June 10, 2016,
Defendant Butler was not working or involved in the investigation. His e-mail response indicated
he will be out on a temporary leave of absence and expected to return on August 1, 2016..4 At
no time was John advised of Defendant Butlers absence nor advised of any second investigator
assigned to the investigation.
117. As per the University Policy, "once the investigation report has been finalized, a
member of the Office of Equal Opportunity will meet with the Complainant and Respondent
4
When John e-mailed Butler on June 10 after realizing the school had released the Preliminary Report while he
was out of the country he received an automatic reply from Butler's e-mail account advising him that he "will be
out of the office on a temporary leave of absence, and expected to return to the office on August 1, 2016." This
likely caused the unacceptable substantial delays of this investigation and is contrary to the University's promise
of a timely process.
26
individually during the pre-arranged time to share the decision made. The Complainant and
Respondent may opt to speak by telephone or to receive the report by electronic email instead.
This may or may not occur simultaneously based on the availability of the parties. The report
includes determinations regarding responsibility for violating the Discrimination and Harassment
Policy and/or the Honor Code."
118. After John confirmed he had reviewed the Preliminary Report on July 24, the
University stopped contacting him or providing any updates on the status of the investigation.
Finally, 22 days after his e-mail to Slater and Butler, on August 15, he again e-mailed Slater
asking about the outcome of the case. Slater replied cc'ing both Defendants McAllister and
Butler. Defendant Slater wrote, "The final report is in the final stage of review. We expect to
have a decision out to you in the next day or so." John was provided no information as to what, if
anything, happened between August 5 and August 16.
119. On August 16, DU again violated its policy by simply e-mailing John a
determination letter. As the Policy makes clear, John was entitled to have an actual meeting
about the decision with a member of the Office of Equal Opportunity. Butler sent John this e-
mail and cc'd Defendants McAllister, Slater, and Olson. The letter on its face revealed that Butler
was not following DU's policy to "meet with the Complainant and Respondent individually
during the pre-arranged time to share the decision made." Butler's letter concluded that if John
had any "additional questions about these findings or would like to schedule a meeting please do
not hesitate to contact" Slater, Butler, or McAllister. DU's policy makes clear that there should
have been a meeting during which the decision was shared. Butler's offer to meet after revealing
this information is contrary to University policy.
120. On August 18, 2016 Defendant Olson also e-mailed John a letter about the
upcoming process related to the Outcome Council. As with the notification of the investigative
27
findings, according to DUs policies, the parties were entitled to have a face-to-face meeting
related to the finding of the Outcome Council: "(o)nce the Outcome Council has rendered a
finding, a member of the Outcome Council will offer the Respondent and Complainant(s) the
opportunity to meet individually to share the outcome decision made. This meeting will be
scheduled within two (2) business of the Outcome Council, and may occur simultaneously based
on the availability of the parties." The policy further describes that, "(a)t this meeting, Written
Notice to the Respondent and Complainant(s) will be provided and will include the Outcome
determinations."
121. Defendant Olson made no pretense of abiding by the school's policy, writing to
John on August 18, 2016, "(i)n order to share the decision made regarding outcomes, I am setting
up a time to speak with you after the Outcome Council for Tuesday, August 23, 2016 at 9:00 am,
which will occur via phone. I will plan on calling the number listed on your file unless you
provide an alternative prior to our scheduled time. If this appointment does not work for you,
please let me know as soon as possible so I can reschedule. Otherwise, please confirm that this
time works for you and that you will plan to participate."5
B. The University Failed to Provide any Specificity as to the Scope of the

Investigation at the Outset of the Process.
122. 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.
5
This was not even the accurate number for John but rather his mother's. Further, Defendants Olson's e-
mail confusingly referred to Monday as being August 24.
28
123. Further, the University's policy specifies that "...the investigator will make a
finding as to whether there is sufficient information to establish, by a preponderance of the
evidence, that a policy violation occurred. The final written report will include the determination
of responsibility and the rationale for the determination." Defendants Butler and Slater also
violated this aspect of the school's policy.
124. On April 29, 2016, John received a notification letter from Defendant McAllister
stating, "a DU student has reported concerns that you many have engaged in violations of
University Policies related to non-consensual sexual contact." The letter referenced Section V. B.
4. Non-Consensual Sexual Conduct. Within this section, a Respondent can be responsible for
having non-consensual sexual contact with a person by a number of means including intentional
sexual touching by force or where the individual is incapacitated. Further the University's
definition of incapacitation "as the inability, temporarily or permanently, to give consent because
an individual is mentally and/or physically helpless, asleep, unconscious, or unaware that sexual
activity is occurring."
125. The April 29th letter did not identify the complainant, the date or location of the
alleged incident, and provided no details as to what John Doe was actually accused of other than
that he engaged in "non-consensual sexual contact." Further, the charges were never detailed
with further precision during John's meeting with McAllister, or the subsequent meeting with
Defendants Slater or Butler.
126. Only upon receiving the Preliminary Report did John learn that Jane alleged that
he violated the University code in two specific ways: he digitally penetrated her while she was
sleeping and then forcibly inserted his penis in her vagina.
127. Despite these two very distinct acts that led to the alleged "violations" of DU
policy Defendants Butler and Slater wrote in the investigative report that they, "stress that the
29
scope of the investigation is limited to Jane's allegation that John forcibly inserted his penis into
her vagina without her consent while they were alone in her residence hall bedroom on the
morning of March 5, 2016." Defendants Slater and Butler found John Doe responsible for this
single act and made no mention of the digital penetration. Although DU Policy mandates "the
final written report will include the determination of responsibility and the rationale for the
determination" the investigators did not offer any explanation as to why they were no longer
considering whether or not John had violated the policy as to the digital penetration.
C. The University Failed to Provide Reasonable Assistance and Support and

Violated Plaintiffs Right to Have a Support Person of His Choice Present
Throughout the Process
128. During John's interview with the investigators on May 13, 2016, he informed
them that he would be completing his finals on May 26 and had a flight home on May 27.
Further, he informed Defendant Butler that he would be out of the country from June 4 through
June 15.
129. John was alerted via e-mail on May 23, 2016 that Butler planned to "make the
preliminary report available by next week at the latest." This would have meant John was due to
receive the preliminary report anytime between May 30 and June 3. Slater was cc'd on this e-
mail.
130. John, while in the middle of finals, AGAIN reminded Defendant Butler that he
would be finishing his finals by May 26, would be flying home on May 27, and would be out of
the country between June 4 through June 15. John cautioned Defendant Butler that he would be
out of reach during this period of time and provided the name of his family friend as a contact
person should there be any updates as to the proceedings.
131. Defendant Butler replied via e-mail on May 26 and cc'd both Defendants Slater
and McAllister. Butler, Slater, and McAllister were utterly indifferent to the substantive issues
30
presented by John in his e-mail. Butler simply informed him that the preliminary report would be
available via e-mail during a secure online connection and that the report could not be shared
with his advisor.
132. Defendants Butler, Slater, and McAllister all ignored the critical issues presented
by Johns concerns. If he received the preliminary report between June 4 and June 15 he 1)
would potentially have been unable to access it; 2) if he were to be able to access the preliminary
report he would have to review this important document while overseas; and 3) DU's restrictions
on sharing this document effectively eviscerated his right to have an advisor at this critical
juncture of the proceedings.
133. Stunningly, Butler wrote, "(i)f you believe that you need an extension of time to
submit additional information once the report is available, you may request that extension from
Jean McAllister. Ms. McAllister is copied to this message." This e-mail is utterly unresponsive to
the actual problems posed by John: should he receive the e-mail between June 4 and June 15 he
may not even be able to access it to request an extension.
134. On June 3, 2016, the outside date by which Butler had stated John would receive
the Preliminary Report in his May 23 e-mail, John still had not received the report. John again e-
mailed Butler. Butler never responded to this e-mail.
135. DU released the report on June 7. Defendant Slater's e-mail informing Plaintiff
that the preliminary report was available for review underscored that John had "five business
days to submit any further comments or relevant information." Defendant Slater noted this
despite the fact that it was clear that both the release of the Preliminary Report and the five-day
period of review fell squarely in the time period that John related he would be out of the country
during his May 11 interview with Defendants Butler and Slater.
31
136. Further, Slater conceded, that "we understand you are currently out of state"6 but
nonetheless reiterated that the "report contains confidential information regarding employees and
students, and may not be e-mailed or printed for that reason." This was in violation of DU's
policy providing for a support person throughout the process.
137. The school policy states that respondents have "the right to have a Support Person
of his or her choice present throughout the process." (page 43). It further states that (t)he
Complainant and Respondent have the right to be assisted by a Support Person of their choice.
The Support Person is someone who can provide emotional, logistical, or other kinds of
assistance. The Support Person may be present at proceedings to assist parties by taking notes,
organizing documentation, or providing emotional support and reassurance. (page 44).
138. Slater unilaterally eliminated John's right to a support person and advisor. The
investigative packet itself was 61 pages. With John in another country, and unable to provide
access to the report to his advisor, Slater had, removed his support structure at this critical
juncture. John warned DU of this exact situation during the initial meeting on May 11. It is
impossible to be advised when one of your support people are 3,500 miles away, across multiple
time zones, and are forbidden from actually reviewing the actual report with John.
139. On June 10, 2016, John discovered the school had, in fact, sent him the 61-page
preliminary report while he was out of the country, despite his June 3 e-mail asking for an
extension before he left should the report be issued while he was away. His second e-mail, sent
upon receiving the report, outlined all his past warnings on this point.
6
Of course, John was not simply out of state but on the other side of the Atlantic with a six-hour time differential
and no computer.
32
VI. FAILURE TO CONDUCT A THOROUGH AND IMPARTIAL

INVESTIGATION
A. Defendants Butler and Slater evidenced a gender bias against Plaintiff when
they relied on select portions of Jane Roes medical records.
140. DU promises students that allegations of sexual violence will be handled by an
investigator, defined as (a)n objective, neutral fact-finder with relevant training and
experience. (page 6). The policy further guarantees 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.
(emphasis added). The investigators' handling of the medical records violated the schools
guarantee in a number of respects.
i. The investigators should have obtained Jane's complete medical

records
141. Defendants Butler and Slater ceded their roles as objective, neutral fact-finders by
allowing Jane Roe to provide only select portions of her medical records. Despite DU's promise
that their investigators have the "relevant training and experience," Defendants Butler and Slater
lacked sufficient medical expertise to analyze the records. Nonetheless, they proceeded to
interpret portions of the medical records without any input from medical personnel while at the
same time utterly disregarding critical sections in the limited records that were provided.
Defendants Butler and Slater's willingness to disregard the probative value of Jane's decision to
withhold important sections of the records reveals the bias they had against John Doe and their
utter lack of impartiality.
142. Jane Roe provided a mere six pages of her medical records to the investigators. A
thorough, impartial, and fair investigator would have requested that Jane Roe sign a Health
Insurance Portability and Accountability Act (HIPPA) waiver that would allow them to
independently retrieve and review all of her medical records.
33
143. Defendants Slater and Butler demanded a HIPPA authorization from the male,
John Doe, but never requested it from the female complainant Jane Roe, to obtain her full and
complete SANE report.
144. Defendants Butler and Slater abdicated their roles as independent investigators
and allowed Jane Roe, a party in the proceeding, to retrieve, screen, and selectively surrender
pages that, in her estimation, advanced her case. Further exacerbating this decision was the
investigator's conclusion that these records were instrumental in shaping their decision to find
John responsible. Specifically, they wrote that they found the "concrete information in the
sections" that were provided to have "value." Page 42. At the same time, they specifically noted
that the pages purposefully withheld by Jane may contain additional insight. (emphasis
added).
ii. Defendants Butler and Slater conceded they lacked sufficient medical
expertise to analyze the records yet did so anyway
145. Amazing, Defendants Slater and Butler freely admitted they were not qualified to
investigate this matter. In their report, they write that while Jane had not turned over photographs
that likely existed, these are not typically requested by or disclosed to the Investigators, as they
lack the medical expertise to visually assess the injuries and should be not unduly influenced by
their own unqualified medical opinions. It is bewildering that an investigator would not
typically request photographs of injuries allegedly sustained during the course of an alleged
assault. (Emphasis added).
146. Their utter failure to question, comment on, or explore Jane Roe's motivation
when providing a fraction of her records reveals the investigators partiality and bias. Incredibly,
the investigators do not comment at all on the significance that Jane Roe, herself, decided that
she did not want to share with the investigators the narrative of events that led to her hospital
34
visit. A neutral, objective fact finder would not only reject this piecemeal surrender of
"evidence" but then question Jane Roe as to why she has not turned over these materials.
147. The investigators conceded they were fully aware of Jane's selective disclosure
but concluded that, despite the fact they were missing significant amounts of additional records,
the "concrete information" provided outweighs "any speculation regarding what might be found
in those documents." Any neutral fact-finder would not have found value in this concrete
evidence but should have either disregarded it without securing a complete set via a HIPPA
waiver or drawn an adverse inference in favor of the respondent in light of the fact that the
complainant was selectively withholding information.
B. Defendants Butler and Slater misrepresented Witness Gs narrative and

assigned it unwarranted weight.
148. Defendant Butler and Slater's substantial reliance on Witness G's statement
demonstrated a lack of reliability and impartiality in the investigation. In Butler and Slater's
"Findings and Conclusions" section they highlighted the importance of Witness G in their
determination that John was responsible for a policy violation. The investigators contrasted
Witness G's statement with the other witnesses, calling the other witness' narratives, "not nearly
compelling to the investigators as the single account of Witness G." The investigators opined on
the significance of Witness G, underscoring that he had no prior relationship with Jane at the
time of her disclosure, Jane could not identify Witness G to the investigators, and "(b)y every
measure the investigators find him to be truly objective and unbiased."
149. This "compelling" witness informed Butler and Slater that his memory was "a
little bit hazy because it's been so long." While, this fact alone would call into question how
Witness G's statement could reasonably be considered "compelling" his account of Jane's
description of the incident stands in stark contrast with what she told the investigators.
35
150. Nonetheless, the investigators credited him as providing compelling corroborative
evidence of Jane's account and afforded unwarranted weight to his statement.
C. The Investigative Report Contained a Number of Misstatements that

Undermined Defendant Butler and Slaters rationale for finding John Doe
responsible for a policy violation.
151. The University policy states, "At the conclusion of the investigation, the
investigator will prepare a written report that summarizes the information gathered and
synthesizes the areas of agreement and disagreement between the parties and any supporting
information or accounts." Butler and Slater misrepresented critical facts and excluded other facts
revealing that their investigation was biased.
152. The report noted the "large volume of information" from Janes friends contained
"repeated reiterations of her account by her close friends." Yet, these witnesses' statements were
completely misrepresented by Defendants Butler and Slater.
153. Significant discrepancies between what Jane told these witnesses and what Jane
told the investigators were either falsely labelled as "issues in agreement" or ignored completely.
In fact, one of Jane's witness's assertions as to what Jane said was largely "in agreement" with
what John recounted.
154. The investigators had the discretion to decide the relevance of all proffered
evidence and determined that certain types of evidence would be included or excluded in the
investigation report. The confirmation bias in the process made it possible for the investigators to
influence and even predetermine the outcome which resulted in a biased and flawed investigation
report.
D. Jane Roe was re-interviewed but was not questioned about numerous facts
that undercut her narrative.
36
155. DU's policy states that, "In most cases, investigators will have follow-up
questions for the complainant and respondent after their respective interviews." (page 33). In
fact, in outlining their process DU notes that the Respondent will be notified "once the
complainant's initial interview is complete." (page 33, emphasis added).
156. Here, the investigators re-interviewed Jane on May 17. Inexplicably, despite
receiving numerous facts that contradicted her narrative, they did not appear to ask any probing
"follow-up questions" about significant inconsistencies between Jane's multiple versions of
events. The investigators improperly relied only upon the complainants own repeated report and
testimony which did not prove that what she had stated was true nor did it confirm her
credibility.
157. By way of illustration, Defendants Butler and Slater ignored information
regarding Jane Roes motivation for filing the complaint. Specifically, Witness N told
investigators that she learned that Jane Roe was angry, not because she had been sexually
assaulted, but rather because she had learned that John Doe had sex with another female friend
that day.
158. Yet, this motive to manufacture a Title IX complaint was utterly disregarded by
investigators both in their questioning of witnesses and in their ultimate conclusions and, quite
clearly, speaks to the fact that these investigators were engaged in a goal oriented endeavor, i.e.
finding John Doe responsible, as opposed to neutral, fair investigation, to learn the truth.
E. The Investigators failed to ask any probing questions related to the

plausibility of Jane Roes account.
37
159. DU's policy promises that (a)n objective, neutral fact-finder with relevant
training and experience will be assigned to respond to an allegation involving sexual violence.
160. Nonetheless Defendants Butler and Slater failed to act as objective and neutral
fact-finders when they accepted Janes statement at face value. Despite the fact they revisited her
description of the encounter there was absolutely no critical inquiry of her account. In light of the
way the summary was drafted it was impossible to discern what specific questions were asked
that prompted her responses.
161. The investigators never did any critical analysis of either of Janes narratives.
F. The Investigators failed to interview Plaintiffs witnesses.
162. DU's policy provides, "The parties may provide any relevant information to the
investigator, including the names of witnesses to contact and/or documents to review at any time
before the investigation is closed. 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.
Investigators will review and determine the weight and materiality of all submitted information
and including the necessity of interviewing potential witnesses."
163. At the conclusion of John's May 11 interview with Defendants Butler and Slater
they asked him whether or not there were any witnesses that he wanted interviewed. He
immediately told them TB and GM. These witnesses were relevant in that they could discuss
what Jane said while in the room with John, how they interacted, and both John and Jane's level
of intoxication. In light of Jane's claim that "I wanted to let him know I didn't want continue
talking to him anymore" these were particularly relevant areas of inquiry. Further, as per Witness
F (JR) she, Jane, John, TB and GM spent some time together in the room playing video games
38
before Jane used Witness E (AC) to lure John out of the room. Neither John nor Jane were able
to provide any details as to this important portion of the night. TB and GM could have filled in
these facts.
164. Yet, Defendants Slater and Butler had no intention of pursuing these witnesses.
In her June 22 e-mail Slater states "I looked over your statement again to find where you
specified people you wanted us to interview......I did not find where you specifically requested
any individuals be interviewed. Instead I found various people you mentioned in your
statement."
165. As per their standard protocol, Defendants Butler and Slater asked John in their
initial meeting with him who he would want to be interviewed. Amazingly, Slater seems to have
no record of this. Further in their report (page 3) they claimed that John submitted these names
on June 17th."(i)n response to the Preliminary Report." These assertions are simply not true as
evidenced by John's e-mails reaffirming he had asked for these two witnesses to be interviewed
in his first meeting with Defendants Slater and Butler.
166. Equally troubling is how Butler and Slater justified their refusal. They referred to
these witnesses as "personal friends" and as "close friends" of John. Further, they suggested that
these witnesses were simply suggested by John because he made statements after the incident
consistent with his current, and steadfast, assertion the encounter was entirely consensual. Butler
and Slater simply ignored everything John had sent and written to them. He made it crystal clear,
during his initial interview, that these witnesses observed John and Jane interact before she led
him out of the room. He even made it clear that these witnesses were important because they
could describe the manner in which he and Jane interacted before the sexual encounter.
167. Regardless, Jane's comments to "personal friends" and "close friends" following
the encounter were all received without question despite the fact that the majority of them did not
39
actually witness any events from that evening but rather spoke to Jane in the following days
about the incident. This is yet another example as to the bias of the investigators and the
disparate treatment John received.
168. The disingenuous nature of Slater and Butler's rationale is underscored by the fact
that Witness E, (AC), was the individual who was recruited by Jane to lure John out of the room
despite the fact John had originally declined her request to speak. The investigators asked AC
about this part of the evening but he had no memory of it. John, however, provided names of the
two people who could actually speak on this exact point. Nonetheless, they first claimed he never
asked them to interview either of them and then proceeded to deny John's request, while at the
same time inquiring of Jane's witnesses about this specific part of the evening.
G. Defendants Butler and Slater failed to address Jane Roes retaliation against
Plaintiff.
169. The Universitys policy states, "(a)s necessary, the University reserves the right to
initiate a complaint, to serve as a Complainant, and to initiate proceedings without a formal
complaint. A reporting party and Complainant need not be the same person." DU affords itself
the authority to proactively address misconduct by allowing itself to assume the role of
Complainant. The school's policy makes clear that a "reporting party and Complainant need not
be the same person."
170. The school also made clear that it would not tolerate either bullying or hazing.
The policy states that "(b)ullying includes any intentional electronic, written, verbal or physical
act, or a series of acts, directed at another individual, that is severe, persistent, or pervasive and
that has the intended effect of doing any of the following: (i) substantially interfering with a
student's education; (ii) creating a threating environment; or (iii) substantially disrupting the
orderly operation of the University." Further the school defines hazing as "any action or
situation, with or without the consent of the participants, which recklessly, intentionally, or
40
unintentionally endangers the mental, physical, or academic health or safety of another
individual. This includes circumstances, which create a risk of injury; cause discomfort or
embarrassment; involve harassment, degradation, humiliation or ridicule..."
171. In his personal statement and subsequent interview John outlined an encounter
with Jane and her mother that was indisputably in violation of DU's code. John stated that shortly
after he had sex with Jane he was in his room studying for a final exam. Also in the room at the
time were John's roommate, his roommate's girlfriend, and his girlfriend's friend. Jane's mother
came to the room, unannounced, introduced herself and said that Jane Roe wanted to speak with
him alone. Once John was alone, Jane's mother left and Jane entered the room. Jane then
informed John that she had filed an anonymous report against him. She also made clear her
belief that she now had leverage over John stating that, "I'm holding a gun with one bullet and
perfect aim."
172. In this conversation Jane also conceded that she had not formed her own opinion
that she had been sexually assaulted but rather she was allowing other people to tell her that she
had been victimized. John then directly asked her whether she, herself, independently believed
she had been assaulted. She refused to answer.
173. In his interview, John informed Defendants Butler and Slater that he had felt
threatened during the course of this conversation. They did nothing. In fact, they made no effort
at all to interview the three people who had been thrown out of the room immediately before
Jane entered to threaten John.
174. Further, there can be no dispute that Jane made these comments. Although,
attempting to soften her actions, Jane Roe herself conceded to the investigators that she made
this threat but labelled it "metaphorical." Further, in her "Title IX Summary Follow-up" she
41
again implicitly concedes she threatened John but argues that John had omitted other facts from
their conversation.
175. The school's own investigation, independent of John Doe's statement, learned of
actions of Jane Roe and her mother that clearly violated the school's policy related to both
bullying and hazing. Further, these acts completely intersected with the charges ultimately
leveled against John Doe and spoke to the falsity of the charges. Nonetheless, despite DU's
policy the school ignored these policy violations committed by Jane Roe despite being informed
of them by multiple witnesses, including Jane Roe herself.
176. According to the U.S. Department of Justice Title IX Legal Manual, Retaliation
protections are designed to preserve the integrity and effectiveness of the enforcement process
itself. Because of this purpose, the merits of any underlying complaint of sex discrimination are
irrelevant in assessing a retaliation complaint. The prohibited conduct is the act of retaliation
itself.
177. The Office for Civil Rights requires that Title IX include protections against
retaliation, and that school officials will not only take steps to prevent retaliation but also take
strong responsive action if it occurs. This includes retaliatory actions taken by the school and
school officials. When a school knows or reasonably should know of possible retaliation by other
students or third parties, including threats, intimidation, coercion, or discrimination (including
harassment), it must take immediate and appropriate steps to investigate or otherwise determine
what occurred. Title IX and Student Conduct staff and administrators at DU exhibited deliberate
indifference by their failure to prevent retaliation against John Doe.
VII. GENDER BIAS AGAINST JOHN DOE AS THE MALE ACCUSED
178. Pursuant to the U.S. Department of Education (DOE) Office for Civil Rights
(OCR) 2011 Dear Colleague Letter (DCL) guidelines and the University of Denvers own
42
self-imposed Procedures, Defendants were required to conduct an impartial and unbiased
investigation process.
179. Title IX requires that The rights established under Title IX must be interpreted
consistently with any federally guaranteed due process rights. Department of Education Office
for Civil Rights Questions and Answers on Title IX and Sexual Violence.
180. Upon information and belief, Defendants knew that complaints of sexual
misconduct are disproportionately lodged by females against males.
181. Upon information and belief, Defendants have recognized the increased pressure
from the United States government to aggressively discipline male students accused of sexual
misconduct.
182. Defendants disparate and discriminatory treatment of John Doe was evident
throughout the investigation and adjudication process when they accepted Jane Roes version of
the events as more credible than John Does despite the lack of any reliable or corroborating
evidence, failed to interview witnesses identified by John Doe while interviewing every witness
identified by Jane Roe, disregarded the policy violations committed by Jane Roe against John
Doe, and deprived John Doe of his procedural rights.
183. The University demonstrated a presumption of guilt against John Doe as the male
accused of sexual misconduct when it overlooked potentially exculpatory evidence, ignored Jane
Roes contradictory and inconsistent statements and made baseless assessments of credibility.
The outright acceptance of Jane Roes version of the events, while ignoring the contradictory
evidence and testimony, can only be attributed to a bias against John Doe as the male accused.
184. 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.
43
185. For instance, the Procedures provide considerable accommodations to the
complainant, who is overwhelmingly 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;
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.
186. 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.
187. 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 non-consensual sexual contact provision will categorically be dismissed from the University.
188. Finally, the interviews of the parties were conducted in such a manner that John
Doe was presumed guilty from the outset and forced to prove his innocence. Specifically,
Defendants interviewed Jane Roe and accepted her version of the events as true prior to even
speaking with John Doe. Subsequently, the interview of John Doe consisted solely of follow up
44
questions to Jane Roes false statements. In this way, John Doe was denied the opportunity to
fully present his account of the events and was instead charged with the task of disproving Jane
Roes allegations.
189. Based on the foregoing, Defendants evidenced a clear gender bias against John
Doe as the male accused throughout the investigation and hearing process, in violation of Title
IX and his rights to fair process.
VIII. FAILURE TO ABIDE BY THE REQUISITE PREPONDERANCE OF THE

EVIDENCE STANDARD
190. The U.S. Department of Education Office for Civil Rights and the Universitys
Procedures require that a preponderance of the evidence standard be used to evaluate allegations
of sexual misconduct.
191. 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.
192. 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 John Doe the requisite presumption
of innocence.
193. Specifically, Defendants improperly placed the burden of proof on John Doe to
establish that Jane Roe had consented to the alleged sexual activity, when it accepted at face
value Jane Roes allegations.
194. Upon accepting Jane Roes uncorroborated account of the events, the Defendants
discriminated against John Doe, based solely on his gender; the only corroboration for Jane
45
Roes version came from witnesses whose knowledge of the incident originated from Jane Roe
herself.
195. A fair reading of the evidence reveals that Jane Roes version of events lacked
any reliability; a presumption of guilt against John Doe was therefore required for a finding of
responsibility to be reached.
196. Accordingly, Defendants failed to utilize the requisite preponderance of the
evidence standard when they found Jane Roe to be more credible despite the lack of any
corroborating evidence, overlooked any evidence tending to support John Doe, while seeking out
evidence favorable to Jane Roe and presumed John Doe guilty from the outset. Defendants Slater
and Butler conducted an investigation calculated to reach the foregone conclusion that John Doe
was guilty of the misconduct alleged.
AS AND FOR A FIRST CAUSE OF ACTION

Violation of Title IX of the Education Amendments of 1972
Against University of Denver
197. John Doe repeats and realleges each and every allegation hereinabove as if fully
set forth herein.
198. 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.
199. 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
46
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.
200. 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.
201. Upon information and belief, Defendant University of Denver receives federal
funding for research and development.
202. 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 actions include all forms of sexual harassment, including sexual intercourse, sexual
assault, and rape.7
203. 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...8
204. The prompt and equitable procedures that a school must implement to accord
due process to both parties involved must include, at a minimum:
7
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.
8
Id. at 22 (emphasis added).
47
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......9
205. 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. 10
206. Based on the foregoing, supra, at 85-201, Defendant University of Denver
deprived John Doe, on the basis of his sex, of his rights to due process and equal protection
through the improper administration of and/or the existence, in its current state, of Defendant
University of Denvers guidelines and regulations.
207. Based on the foregoing, supra, at 85-201 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 John Doe.
208. Upon information and belief, various administrators at University of Denver have
demonstrated an inherent predisposition against male students accused of sexual misconduct.
209. Upon information and belief, Defendant Chopp appointed Defendant McAllister
to serve as Title IX Coordinator at University of Denver effective June 1, 2015. Defendant
9
Id. at 20.
10
Id. at 21.
48
McAllister, a well-known victims rights advocate, had 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.
210. 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 John Does case is highly questionable.
211. 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.
212. 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 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 responsibility. (sic., pg.
3)
49
213. 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, John Doe was going to be found
responsible of the charges, simply by virtue of the fact that an investigation had been initiated.
214. 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.
215. Upon information and belief, the University of Denver was under federal
investigation for two separate cases, one specifically involving a respondent, during the months
John Does case was investigated. Consequently, the University of Denvers mishandling of John
Does investigation was wrongfully informed by such federal pressure.
216. 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.
217. Based on the foregoing, Defendant University of Denver imposed an unwarranted
and excessive sanction on John Doe as a result of an erroneous outcome reached by a flawed
investigation.
50
218. 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.
219. Based on the foregoing, John Doe was subjected to a biased, prejudiced and
explicitly unfair process in violation of Title IX.
220. As a result of the foregoing, John Doe 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 Pursuant to 42 U.S.C. 1983
set forth herein.
222. 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).
223. 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
investigating and adjudicating allegations of campus sexual assault under detailed procedures
and terms dictated by the federal government.
224. 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:
51
(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.
225. 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, former 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.
226. 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.
227. 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
52
forcible sex offenses on campus in 2012; 8 instances of forcible sex offenses in 2013; 16
instances of sexual assault on campus in 2014; and 15 instances in 2015.
228. 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.
229. 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.
230. Defendants need and desire to acquiesce to former President Obamas
administrations Dear Colleague letter and trample the due process rights of its students is
confirmed by the current United States Department of Education Secretary, Betsy Devos, who
has recently been quoted as saying a system without due process serves no one.
https://www.google.com/amp/amp.usatoday.com/story/493320001/
231. University of Denver applied the investigative and adjudicatory process dictated
to it by the federal government when it investigated and adjudicated Jane Roes complaint
against John Doe.
232. Under clear and controlling federal constitutional case law, a private actor
becomes a state actor when the challenged activity results from the States exercise of coercive
power.
233. 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.
53
234. University of Denver has taken steps to ensure compliance with the Dear
Colleague Letter, out of fear of negative publicity and rescission of federal funds.
235. Accordingly, when University of Denver investigated and adjudicated Jane Roes
sexual assault complaint against John Doe, and when it expelled John Doe after reaching its
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.
236. In the course of such investigation and adjudication, University of Denver
flagrantly violated John Does 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. For instance:
The notice of charge letter failed to identify the complainant, the date and location of
the alleged incident or the specific policies allegedly violated;
As John Doe was not provided a copy of Jane Roes complaint, he was forced to
participate in the investigation process, answer questions and begin formulating his
defense to the charges, without being notified of the exact allegations against him, or
the policies he allegedly violated;
The University issued the Preliminary Report while Plaintiff was unable to access it,
could not view the full report and was unable to seek the advice of his support person;
The Universitys single investigator model deprived Plaintiff of the right to have a
hearing on the charges against him, thus eliminating his opportunity to confront his
accuser, question any witnesses against him and present his defense before an
impartial decision maker.
237. 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 Roes sexual misconduct
complaint against John Doe.
54
238. Based on the foregoing, DU failed to properly notify John Doe of the allegations
against him in violation of his fundamental procedural rights and clearly established law.
239. Based on the foregoing, DU deprived John Doe of an opportunity to be heard and
participate in a meaningful manner in violation of his fundamental procedural rights and clearly
established law.
240. Based on the foregoing, in expelling John Doe from the University, DU deprived
Plaintiff of his guaranteed liberty and property rights without due process.
241. As a result of the foregoing, John is entitled to damages in an amount to be
AS AND FOR A THIRD CAUSE OF ACTION

Breach of Contract
set forth herein.
243. Based on the aforementioned facts and circumstances, University of Denver
created express and implied contracts when it offered, and John Doe accepted, admission to
University of Denver and paid the required tuition and fees.
244. Based on the aforementioned facts and circumstances, Defendant University of
Denver breached express and/or implied agreement(s) with John Doe.
245. Defendant University of Denver committed several breaches of its agreements
with John Doe during the investigation and hearing process. A non-exhaustive list of University
of Denvers breaches includes the following:
Defendants failed to conduct a thorough and impartial investigation
55
246. 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.
247. Notwithstanding, University of Denver performed a one sided and biased
investigation in favor of Jane Roes allegations of sexual misconduct.
248. Based on the foregoing, supra, at 85-201the investigation was replete with
procedural errors including, but not limited to:
the failure to properly investigate and collect all available

evidence;
the disregard of John Does witnesses while interviewing all of

Jane Roes witnesses;
the failure to include information provided by John Doe in the

investigative Report;
the acceptance of Jane Roes allegations despite witness statements

to the contrary;
the failure to collect Jane Roes medical records, instead accepting

as conclusive the portion provided by Jane Roe herself;
the complete disregard of contradictions and inconsistencies in

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

Doe.
249. Based on the foregoing, supra, at 85-201, due to a lack of experience and
training on the part of the investigators and a variety of procedural errors, Defendants failed to
perform a thorough and impartial investigation process, in violation of their contractual
obligations to John Doe.
56
University of Denver deprived John Doe an equal opportunity to be heard
250. 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.
251. Based on the foregoing, supra, at 85-201 the University breached its contract
with John Doe when it selectively interviewed witnesses favorable to Jane Roe despite their lack
of personal knowledge, overlooked potentially exculpatory evidence, and failed to interview
witnesses identified by John Doe who had direct knowledge of the Incident.
252. Accordingly, John Doe 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.
253. As a direct and foreseeable consequence of the foregoing breaches, John Doe
sustained tremendous damages, including, without limitation, emotional distress, loss of
educational and career opportunities, economic injuries and other direct and consequential
damages.
254. John Doe is entitled to recover damages for Defendant University of Denvers
breach of the express and/or implied contractual obligations described above.
255. As a direct and proximate result of the above conduct, actions and inactions, John
Doe has suffered physical, psychological, emotional and reputational damages, economic
injuries and the loss of educational and career opportunities.
AS AND FOR A FOURTH CAUSE OF ACTION

Breach of the Covenant of Good Faith and Fair Dealing
57
set forth herein.
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 Roes
claims of sexual misconduct.
Denver breached and violated a covenant of good faith and fair dealing implied in the
agreement(s) with John Doe.
260. As a direct and foreseeable consequence of these breaches, John Doe sustained
tremendous damages, including, without limitation, emotional distress, loss of educational and
career opportunities, economic injuries and other direct and consequential damages.
261. John Doe is entitled to recover damages for Defendant University of Denvers
breach of the express and/or implied contractual obligations described above.
AS AND FOR A FIFTH CAUSE OF ACTION

Promissory Estoppel
set forth herein.
264. University of Denvers various policies constitute representations and promises
that University of Denver should have reasonably expected to induce action or forbearance by
John Doe.
58
265. University of Denver expected or should have expected John Doe 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 John Doe
would not suffer, discrimination or harassment by fellow students or faculty members and would
not deny John Doe his procedural rights should he be accused of a violation of University of
Denvers policies.
266. John Doe 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.
267. These express and implied promises and representations made by University of
Denver must be enforced to prevent substantial injustice to John Doe.
268. Based on the foregoing, University of Denver is liable to John Doe based on
Promissory Estoppel.
269. As a direct and proximate result of the above conduct, John Doe sustained
determined at trial, plus prejudgment interest, attorneys fees, expenses, costs and disbursements
AS AND FOR A SIXTH CAUSE OF ACTION

Negligence Against All Defendants
set forth herein.
272. Defendants owed duties of care to John Doe, 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
59
care to allow John Doe 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 sexual misconduct against him; and a duty of care to utilize the preponderance of the evidence
standard in reaching a determination.
273. Based on the foregoing, supra, at 85-201 Defendants breached their duties
owed to John Doe.
274. As a direct and proximate result of the above conduct, John Doe sustained
PRAYER FOR RELIEF
WHEREFORE, for the foregoing reasons, John Doe 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 John Doe 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 John Doe 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
60
educational and career opportunities, and loss of future career prospects, plus prejudgment
interest, attorneys fees, expenses, costs and disbursements;
(iii) on the third cause of action for breach of contract, a judgment awarding John
Doe 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;
(iv) on the fourth cause of action for breach of the covenant of good faith and fair
dealing, a judgment awarding John Doe 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;
(v) on the fifth cause of action for promissory estoppel, a judgment awarding John
Doe damages in an amount to be determined at trial, including, without limitation, damages to
(vi) on the sixth cause of action for negligence, a judgment awarding John Doe
damages in an amount to be determined at trial, including, without limitation, damages to
61
(vii) by reason of the foregoing, John Doe requests, pursuant to 28 U.S.C. 2201, a
declaration that: (i) the outcome and findings made by University of Denver be reversed; (ii)
John Does reputation be restored; (iii) John Does disciplinary record be expunged; (iv) the
record of John Does expulsion from University of Denver be removed from his education file;
(v) any record of the complaint against John Doe be permanently destroyed; (vi) John Doe be
readmitted to University of Denver for the Fall 2017 semester; and (vii) University of Denvers
rules, regulations and guidelines are unconstitutional as applied; and
(vii) awarding John Doe such other and further relief as the Court deems just,
equitable and proper.
JURY DEMAND
John Doe herein demands a trial by jury of all triable issues in the present matter.
Dated this 15th day of August 2017.

/s/ Michael J. Mirabella
[e-filing-August 15, 2017]
______________________________
Michael J. Mirabella, Esq.
420 East 17th Avenue, Suite 400
Denver, CO 80203
720-931-2094
mmirabella@mbellalaw.com
-and-
/s/ Andrew T. Miltenberg

[e-filing-August 15, 2017]
______________________________
Andrew T. Miltenberg, Esq.
Stuart Bernstein, Esq.
Tara Davis, Esq.
Nesenoff & Miltenberg LLP
363 7th Avenue, Fifth Floor
New York, NY 10001
212-736-4500
amiltenberg@nmllplaw.com
sbernstein@nmllplaw.com
tdavis@nmllplaw.com
Counsel for Plaintiff
62

John Doe v. University of Denver, Et. Al.: August 2017

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Case 1:17-cv-01962-KMT Document 3 Filed 08/15/17 USDC Colorado Page 1 of 62

UNITED STATES DISTRICT COURT

UNIVERSITY OF DENVER, UNIVERSITY

THE NATURE OF THIS ACTION

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

University), University of Denver Board of Trustees (Defendant Board of Trustees),

freshman student Jane Roe.

2. In addition to the damages sustained by John Doe, including his inability to

educational and career opportunities.

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

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

5. When Defendants subjected John Doe to disciplinary action, they did so in an

conclusion of sexual misconduct to be reached.

violations of Title IX of the Education Amendments of 1972, violation of 14th Amendment

and resided on the Universitys campus in Denver, Colorado.

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

an address of 2199 S. University Boulevard, Denver, Colorado 80208.

of the University of Denver. It is composed of twenty-eight (28) voting members including

relevant times herein.

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

Denver on June 1, 2015.

relevant times herein.

relevant times herein.

JURISDICTION AND VENUE

the University of Denver.

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

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

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

FACTUAL ALLEGATIONS COMMON TO ALL CLAIMS

the Universitys website. See, http://www.du.edu/equalopportunity/complaints/index.html (Last

accessed, July 31, 2017).

26. With respect to cases involving allegations of sexual discrimination, sexual

These Procedures address all forms of sexual discrimination, including sexual

These Procedures prohibit sexual harassment, sexual violence, stalking, and

27. University of Denvers Office of Equal Opportunity Procedures, in conjunction

28. University of Denvers Procedures define Non-Consensual Sexual Contact as:

Any intentional sexual touching, however slight, with any object,

29. The Procedures define Consent in relevant part as follows:

Individuals who choose to engage in sexual activity of any type

30. A complaint that alleges a violation of the Universitys policies related to

Complainants request. (emphasis added).

accommodations to the complainant:

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

Notify complainant of the availability of medical treatment to

Provide complainant with information about on and off campus

Discuss complainants expressed preference for manner of

Explain the Universitys policy prohibiting retaliation; and

Explain the role of a support person or advisor.

specific training and experience investigating allegations of harassment, discrimination and

sexual harassment. The investigator may be an employee of the University or an external

individuals will be treated with appropriate sensitivity and respect.

be participating solely to speak about an individuals character.

parties of the delay and the reason for the delay.

trait, including honesty.

a preponderance of the evidence standard whether sufficient information exists to support a

determination of responsibility and the rationale for the determination.

42. University of Denver, in this Investigation allegedly employed the "dual

determination of responsibility and issue a corresponding finding. As the Universitys

impartial decision maker.

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

referred to an Outcome Council.

experience to serve in this capacity.

based on demonstrable bias within two (2) business days.

48. Although the Outcome Council is granted discretion in determining what