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17-3594-cv 

Doe v. Colgate Univ.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A 

SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY 

FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN 

CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE 

EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION 

“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON 

ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held 

at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New 

York, on the 15th day of January, two thousand nineteen.

PRESENT: JOHN M. WALKER, JR.,

PIERRE N. LEVAL,

CHRISTOPHER F. DRONEY,

Circuit Judges.

______________________________________________

JOHN DOE,

Plaintiff-Appellant,

v. No. 17-3594-cv

COLGATE UNIVERSITY,

Defendant-Appellee,

COLGATE UNIVERSITY BOARD OF TRUSTEES, JEFFREY 

HERBST, individually and as agent for Colgate University,

SUZY M. NELSON, individually and as agent for Colgate 

University, KIMBERLY TAYLOR, individually and as agent 

for Colgate University, MARILYN RUGG, individually and 

as agent for Colgate University, VALERIE BROGAN,

individually and as agent for Colgate University, TAMALA 

FLACK, individually and as agent for Colgate University, 

Defendants.

______________________________________________
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FOR PLAINTIFF-APPELLANT: PHILIP A. BYLER, (Andrew T. Miltenberg, 

Kara Gorycki, Tara Davis, on the brief), 

Nesenoff & Miltenberg, LLP, New York, 

NY

FOR DEFENDANT-APPELLEE: LAURA H. HARSHBARGER, Bond, 

Schoeneck & King, PLLC, Syracuse, NY.

Appeal from an October 31, 2017, judgment entered by the United States District 

Court for the Northern District of New York (Kahn, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 

AND DECREED that the judgment of the district court is AFFIRMED.

Plaintiff-Appellant John Doe1 appeals from the October 31, 2017, judgment of the 

United States District Court for the Northern District of New York (Kahn, J.) dismissing 

this action on summary judgment. John Doe brought claims against Colgate University 

(“Colgate,” or “the University”) and a number of its officers and administrators alleging 

violations of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq.

(“Title IX”), as well as, among other claims, breach of contract and breach of the duty of 

good faith and fair dealing.

2

 He contends that Colgate discriminated against him because 

of his gender and violated policies set forth in its own student handbook when it expelled 

him for sexual misconduct in his senior year. John Doe also challenges the district court’s 

ruling that his proffered expert witness’s testimony was inadmissible under Rule 702 of 

the Federal Rules of Evidence for consideration during the summary judgment 

proceedings.

I. Background

A. Factual Background

Colgate University is a private university in Hamilton, New York. John Doe was 

an undergraduate student there from Fall 2011 until he was expelled for sexual misconduct

in April 2015. Colgate adjudicates sexual misconduct allegations according to its Equity 

Grievance Policy (“EGP”), through the Equity Grievance Panel (the “Panel”). The Panel 

 1 The district court granted John Doe’s motion to proceed under a pseudonym.

2 John Doe withdrew his appeal as to the individual defendants. He also does not appeal the dismissal of 

his claims brought under the New York General Business Law, New York State Human Rights Law, or for 

“estoppel and reliance,” negligence, or declaratory judgment; thus, he has abandoned these claims.
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investigates misconduct allegations and holds a hearing if the alleged conduct may warrant 

suspension or expulsion. 

On October 28 and 29, 2014, Jane Does 1, 2, and 33 filed anonymous reports with 

the University, each alleging that John Doe had returned to their dormitory rooms after 

social events and had touched them sexually without their consent. Jane Does 1 and 3 

additionally claimed John Doe had digitally penetrated them without their consent. Jane 

Doe 1 alleged conduct occurring on October 28–29, 2011 (the “October 2011 incident”); 

Jane Doe 2 alleged conduct occurring on February 11–12, 2012 (the “February 2012 

incident”); and Jane Doe 3 alleged conduct occurring on April 28–29, 2012 (the “April 

2012 incident”). 

In November 2014, Jane Doe 2 met with Marilyn Rugg, the University’s Title IX 

coordinator, to file a formal complaint. Rugg assigned Valerie Brogan, the Campus 

Safety Investigator, and Tamala Flack, the Director of Equal Employment Opportunity and 

Affirmative Action, to investigate the complaint. 

Brogan interviewed Jane Doe 2 on November 7, 2014, and confirmed she was one 

of the anonymous complainants. Brogan and Flack spoke with six witnesses about the 

complaint, including Jane Does 1 and 3. Jane Does 1 and 3 eventually informed Brogan 

and Flack that they had authored the other two complaints. Brogan and Flack reported 

the complainants’ identities to Rugg, and eventually interviewed Jane Does 1 and 3. 

Dean Kimberly Taylor met with John Doe on December 4, 2014, and informed him 

that he was the subject of an EGP investigation based on allegations made against him. 

Brogan and Flack interviewed John Doe on December 12, 2014. John Doe gave 

his account of the three incidents when Brogan and Flack asked him about his sexual 

history with the three complainants. He later memorialized his accounts in written 

statements. In general, John Doe maintained that he and Jane Does 1, 2, and 3 had been 

drinking alcohol before their encounters those evenings and he had only engaged in 

voluntary sexual activity with them. John Doe contends now that the complaints against 

him were prompted in part by a “Sexual Climate Forum” called “Breaking the Silence” 

held on campus on October 27, 2014, which sought to raise awareness about campus sexual 

assault. 

 3 Like the district court, we will refer to the three complainants under their pseudonyms of Jane Doe 1, 2, 

and 3.
4

In addition to Jane Does 1, 2, and 3, and John Doe, Brogan and Flack spoke with 

sixteen witnesses, including all witnesses John Doe identified as potentially having 

relevant information about the three alleged incidents. 

On March 24, 2015, Colgate informed John Doe that it was charging him with 

Sexual Misconduct I for the October 2011 and April 2012 incidents, Sexual Misconduct II 

for all three incidents, and Sexual Exploitation for the February 2012 and April 2012 

incidents.

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 Under University policy, a student found responsible for these offenses could 

be suspended or expelled. Rugg and Taylor determined that a hearing should be held to 

adjudicate the charges. Taylor was to serve as the nonvoting chair of the hearing. Rugg 

appointed three Panel members to the case: Professors Jeff Bary and Mary Moran, and the 

Biology Department’s head technician Nicole Doroshenko. 

EGP procedure allows a panel to consider evidence of a “pattern of conduct” if it is 

relevant to the charges. Taylor determined that the three incidents underlying the charges 

against John Doe suggested a pattern of conduct, and asked John Doe if he would consent 

to have all three complaints heard as a single case. John Doe did not consent and thus, 

Taylor determined that the three complaints would be heard separately, but consecutively,

on the same day by the same panel. Taylor also denied John Doe’s request for three 

separate panels. His hearings were set for April 7, 2015. 

Taylor allowed John Doe and his attorney to review the investigation file in her 

office between March 27 and April 7, 2015, which they did on April 3 and again on April 

7. Taylor denied John Doe’s request to postpone the hearing, reasoning that two weeks’ 

notice was twice what EGP procedure required and that John Doe had delayed in reviewing 

the file once it was available. 

On April 7, 2015, the hearing panel heard the three cases in succession. In each 

case, Taylor read the charges against John Doe and asked if he took responsibility for the 

alleged conduct, but he denied the allegations. Brogan testified about her investigation, 

including her interviews of John Doe, the complainants, and other witnesses, and gave her 

opinions about witness credibility and demeanor. Then the hearing panel, John Doe, and 

the complainants were given an opportunity to ask Brogan questions. Next, the panel 

members asked questions of the complainants and of John Doe. John Doe and the 

complainant were each given an opportunity to submit questions for Taylor to ask the other, 

and each part of the hearing concluded after the complainant and John Doe gave closing 

statements. John Doe chose not to call any witnesses. 

 4 The conduct of which John Doe was accused meets the 2011–12 Student Handbook’s definitions of 

Sexual Misconduct I and II and Sexual Exploitation, and he does not appear to argue otherwise.
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After the hearing, the hearing panel unanimously found John Doe responsible for 

all charges. The hearing panel decided that he should be expelled for the Sexual 

Misconduct I charges by Jane Does 1 and 3 and suspended for the Sexual Misconduct II 

charges by Jane Doe 2. On April 8, 2015, John Doe was expelled. 

John Doe appealed the decisions to University Dean Suzy Nelson, who denied the 

appeal. EGP procedure provides that the only grounds for appeal are: (1) “a procedural 

error or omission . . . during the EGP hearing which, based upon the entire record, is 

reasonably likely to have changed the outcome of the hearing (e.g., substantiated bias, 

material deviation from established procedures, etc.);” (2) new information not available 

to the party at the time of the hearing; or (3) a sanction disproportionate to the nature or 

severity of the violation. App’x at 332–33.

B. Procedural History

John Doe filed suit in the United States District Court for the Northern District of 

New York on August 31, 2015. On June 21, 2017, Colgate moved for summary 

judgment. 

On September 11, 2017, Colgate moved pursuant to Federal Rule of Evidence 702 

to exclude portions of an expert report from Professor Aya Gruber from consideration on 

summary judgment. Professor Gruber is a law professor who has written several articles 

on sexual assault. 

Gruber’s report discusses two “modes of thinking” that she claims are prevalent in 

university Title IX policy and impacted Colgate’s adjudication of the claims against John 

Doe: the “trauma trope” and the “serial rapist trope.” The trauma trope, according to 

Gruber, is “the presumption that anyone who makes a complaint of sexual assault, or even 

minor sexual contact, suffers from debilitating, or at least serious, trauma.” C. App’x at 

451. Gruber contends that this prevented the University from questioning why all three 

complainants came forward at almost exactly the same time. The serial rapist trope, 

according to Gruber, is the mistaken idea that most college sexual assaults are perpetrated 

by a few serial rapists. She contends that the three complainants may not have come 

forward had they not talked to each other and concluded that John Doe “was a ‘serial’ 

rapist, and therefore what happened to them was rape.” C. App’x at 454. Gruber further 

concludes that the serial rapist trope may have influenced the University’s determination 

that John Doe was responsible for sexual misconduct because there were multiple 

accusations against him. 

Gruber also contends that the hearing panel may not have properly understood that, 

to hold an accused responsible for sexual misconduct, “[t]he evidence must show that the 
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accused knew, or had substantial reason to believe, that the complainant did not consent,” 

and instead may have focused on whether the complainants internally did not want the 

sexual activity to occur. C. App’x at 455. Gruber’s report then describes several alleged 

procedural deficiencies in Colgate’s disciplinary proceedings against John Doe, including 

conflicts of interest; the inadequacy of the notice given to John Doe; Dean Taylor’s 

decisions to consolidate the three complaints and not to grant John Doe an extension of 

time to prepare; Dean Nelson’s appellate decision; and Brogan’s investigation. 

On October 31, 2017, the district court granted Colgate’s motions for summary 

judgment and to exclude the expert report, dismissed the case, and entered judgment. 

This appeal followed.

II. Admissibility of Gruber’s Report

“The admission of expert testimony is committed to the broad discretion of the 

District Court and will not be disturbed on review unless found to be manifestly erroneous.” 

United States v. Wexler, 522 F.3d 194, 204 (2d Cir. 2008) (internal quotation marks

omitted). To be admissible, expert testimony must be, among other things, “help[ful] [to]

the trier of fact to understand the evidence or to determine a fact in issue” and “based on 

sufficient facts or data.” Fed. R. Evid. 702(a), (b). An expert must also be qualified “by 

knowledge, skill, experience, training, or education.” Fed. R. Evid. 702. If the “factual 

basis, data, principles, [or] methods [of expert testimony], or their application are called 

sufficiently into question, the trial judge must determine whether the testimony has a 

reliable basis in the knowledge of the relevant discipline.” Kumho Tire Co., Ltd. v. 

Carmichael, 526 U.S. 137, 149 (1999) (internal quotation marks, citations, and alteration 

omitted). Trial judges have “considerable leeway in deciding in a particular case how to 

go about determining whether particular expert testimony is reliable.” Id. at 152.

The district court did not abuse its discretion when it ruled that Gruber’s conclusions 

lacked a sufficient factual basis. Gruber’s general conclusions about university 

administrators are supported primarily by her own law review articles, which offer little 

empirical support. Moreover, Gruber cites little to no evidence that the trauma and serial 

rapist tropes influenced the University’s investigation or disciplinary hearing; that the serial 

rapist trope affected Jane Does 1, 2, and 3’s decisions to file complaints; or that the hearing 

panel confused nonconsensual sex with “internally unwanted sex.” 

The district court also did not abuse its discretion by excluding Gruber’s conclusions 

about procedural deficiencies in the University’s handling of John Doe’s case. The court 

reasonably concluded that Gruber’s lack of experience investigating sexual assault and lack 

of familiarity with Title IX training and investigations rendered her unqualified to opine 

on the propriety of Brogan’s investigation. Moreover, the district court properly excluded 
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Gruber’s other procedural conclusions because they were unhelpful to the trier of fact. 

See Nimely v. City of New York, 414 F.3d 381, 397 (2d Cir. 2005) (“expert testimony that 

usurps either the role of the trial judge in instructing the jury as to the applicable law or the 

role of the jury in applying that law to the facts before it” is not helpful (internal quotation 

marks, citation, and alteration omitted)). Gruber’s opinion that the University breached 

its contract with John Doe by failing to follow its own procedures is unhelpful because it 

usurps the jury’s role in applying the law to the facts. Likewise, Gruber’s opinion that 

procedural deficiencies demonstrate that John Doe was treated unfairly based on gender is 

unhelpful because it would not help a jury “understand the evidence or to determine a fact 

in issue.” Fed. R. Evid. 702(a).

Accordingly, we affirm the district court’s decision to exclude Gruber’s expert 

report from consideration at the summary judgment stage. 

III. District Court’s Ruling on Summary Judgment

We review the district court’s grant of summary judgment de novo. Wright v. N.Y. 

State Dep’t of Corr., 831 F.3d 64, 71 (2d Cir. 2016). We “resolve all ambiguities and 

draw all permissible factual inferences in favor of the non-moving party, and will affirm 

summary judgment only if the moving party shows that there is no genuine dispute as to 

any material fact and the movant is entitled to judgment as a matter of law.” Id. at 71–72 

(internal quotation marks, citations, and alteration omitted). However, “[t]he mere 

existence of a scintilla of evidence in support of the [non-movant’s] position will be 

insufficient” to defeat summary judgment. Lyons v. Lancer Ins. Co., 681 F.3d 50, 56 (2d 

Cir. 2012) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)).

A. Title IX Claim

Under Title IX, with exceptions not relevant here, “[n]o 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.” 20 U.S.C. § 1681(a). Thus, “Title IX bars the imposition of 

university discipline where gender is a motivating factor in the decision to discipline.” 

Yusuf v. Vassar Coll., 35 F.3d 709, 715 (2d Cir. 1994). Title IX claims concerning 

disciplinary proceedings generally follow either an “erroneous outcome” theory or a 

“selective enforcement” theory. Id. 

John Doe’s claim proceeds under an “erroneous outcome” theory of gender bias. 

To succeed on this theory, he must demonstrate (1) “articulable doubt [as to] the accuracy 

of the outcome of the disciplinary proceeding,” and (2) that “gender bias was a motivating 

factor behind the erroneous finding.” Id.
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Assuming that his insistence that the sexual encounters were consensual was 

sufficient to raise a disputed issue of material fact on the question of misconduct, to resist 

summary judgment John Doe must demonstrate a genuine dispute of material fact as to 

whether Colgate’s actions were motivated by gender bias. We agree with the district 

court that he has not done so.

On appeal, John Doe argues that there was evidence demonstrating gender bias in 

the following respects: (1) at the time of his expulsion, Colgate was under pressure to 

punish male students accused of sexual misconduct; (2) EGP training was biased against 

men; (3) Investigator Brogan was biased against him; (4) Dean Taylor consolidated the 

three complainants into one hearing without evidence of a pattern of behavior; (5) the 

University made accommodations at the hearing for the complainants that it did not make 

for him; (6) the hearing itself was unfair toward him; (7) the hearing panel’s weighing of 

the evidence evinced gender-based evaluation and misapplied the burden of proof; and (8) 

Dean Nelson incorrectly ruled on his appeal. We discuss each contention in turn. 

1. Pressure on Colgate to Punish Men

John Doe’s evidence does not give rise to a genuine dispute of material fact that 

Colgate was under pressure to punish male students for sexual misconduct. He points to 

the Sexual Climate Forum that took place shortly before Jane Does 1, 2, and 3 accused him 

of misconduct, a 2011 letter from the United States Department of Education’s Office for 

Civil Rights, and a “Winter Message” from the University’s president concerning sexual 

harassment. We agree with the district court that John Doe does not explain how any of 

these events resulted in gender bias on the part of the University. Indeed, the President’s 

message noted that both men and women are victims of attempted or actual sexual assault

and that all parties to a misconduct complaint deserve to be treated with respect.

2. Whether EGP Training was Biased against Men

John Doe contends that Rugg, the Title IX Coordinator, introduced gender bias into 

the EGP process. Rugg trained EGP staff, and in 2014, she attended a training session 

for investigating campus sexual misconduct. Rugg’s notes from the session indicate that 

investigators should refer to the complainant as a “complainant” when talking to a 

respondent, but as the “victim” or “survivor” when talking to a complainant. Moreover, 

in her own training presentations, Rugg would sometimes refer to complainants using 

female pronouns and respondents with male pronouns because in her experience, most 

complainants were female and most respondents were male. 

This is insufficient evidence to demonstrate that John Doe was expelled based on 

gender bias. There is no indication that Rugg’s use of such pronouns reflects anything 
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more than the statistical reality that most respondents are men and most complainants are 

women, nor that calling complainants of any gender “victims” or “survivors” when 

speaking to them reflects gender bias, rather than a desire to be sensitive. In addition, the 

allegation that EGP staff members were trained to be biased against men is not supported 

by the record of dispositions decided by EGP panels during the relevant time period: 

between 2012 and 2015, three male respondents were found not responsible for any charges 

against them and two other male respondents were found not responsible for the most 

serious charges against them, compared with only three male respondents who were found 

responsible for the most serious charges against them during the same time period (in 

addition to John Doe) and one male respondent who admitted responsibility. 

3. Brogan’s Bias

John Doe contends that Brogan biased the investigation against him. He focuses 

in part on Brogan’s background as a female former police detective who investigated

sexual offenses. John Doe contends that this experience predisposed Brogan to consider 

“males as perpetrators,” although the cited evidence does not support this.

5

 Appellant’s 

Br. at 35. He relies on Brogan’s testimony that, in her experience, most victims tell the 

truth, and that when a long time passes between an incident and a complaint, the memory 

issues that arise tend to be about specific details rather than whether an incident happened 

or not. John Doe highlights that Brogan commonly asks respondents questions to the 

effect of, “can you think of any reason these women would say this happened if it didn’t,” 

which she asked John Doe as well.6

 C. App’x at 418.

This is insufficient evidence that Brogan was biased against John Doe. Brogan’s 

statements about complainants reflect personal experience, rather than an assumption that 

they tell the truth. Her question to respondents about why a complainant might have said 

 5 John Doe’s brief cites Brogan’s deposition for two points in support of this contention: first, that Brogan 

“conducts investigations at Colgate in the same manner as when she was a police officer,” and second that 

she “thinks of sexual misconduct offenses in the language she was ‘trained in’ meaning her ‘law 

enforcement career.’” Appellant’s Br. at 35 (citing C. App’x at 419–20, then at 401–02). The first 

statement is not supported by the cited testimony. The second statement comes from a brief discussion in 

which Brogan indicated she would call sexual offenses by the names she would use as a detective, i.e., 

“rape,” rather than by the name the University used for charges, i.e., “Sexual Misconduct I.” This does 

not indicate gender bias or a predisposition against male respondents.

6 John Doe further contends that Brogan “investigated [his] case assuming that he was responsible in every 

instance for obtaining consent,” because she did not ask Jane Doe 2 if she had obtained John Doe’s consent. 

Appellant’s Br. at 38. But Jane Doe 2 claimed not to have initiated any sexual or even physical activity 

with John Doe, so Brogan would not have asked her about obtaining John Doe’s consent. John Doe also 

repeatedly suggests that Brogan persuaded Jane Doe 1 to add to her complaint that digital penetration 

actually occurred. There is no evidence that Brogan did so.
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something “happened if it didn’t” invites the respondent to inform the investigator of any 

reason the complainant might have to make a false accusation, such as animosity toward 

the respondent. Brogan’s statements about the possibility that complainants may, after 

the passage of time, have faded memories concerning the details of an event, while still

retaining a clear memory of whether it happened does not, on its face, evince bias.

4. Consolidation Decision

John Doe contends that Taylor’s decision to have the same hearing panel decide all 

three complaints against him evinces bias because she erroneously determined that the 

three incidents formed a pattern of behavior. We agree with the district court that this

does not raise a genuine issue that Taylor was motivated by gender bias, especially because 

Taylor provided legitimate, gender-neutral explanations to support her decision.

5. Treatment of Complainants Versus John Doe at the Hearing

John Doe next contends that Colgate’s treatment of the complainants at the hearing 

was more favorable than its treatment of him. He notes that the complainants were given 

a waiting room for themselves and their friends before the hearing started, while he was 

given only two weeks’ notice before the hearing and denied a postponement. John Doe

further contends he was entitled to three weeks’ notice of the charges before his hearing 

could take place because there were three complainants. 

The district court properly concluded that this evidence also does not support an 

inference of bias. As the district court noted, John Doe does not claim that he requested 

and was denied his own waiting room before the hearing. As for John Doe receiving two 

weeks’ notice before his hearing, EGP procedure requires notification of charges “[a]t least 

one week prior to the hearing,” but says nothing about additional time being required if 

there are multiple hearings or complainants. App’x 328. Moreover, Taylor’s denial of 

John Doe’s postponement was based on John Doe’s delay in reviewing the file, which John 

Doe did not dispute. Finally, John Doe and his counsel were provided sufficient time for 

their hearing preparation and make no specific assertions as to how the alleged time 

limitations impaired their ability to prepare for the hearings.

6. Whether the Hearing Panel was Unfair

John Doe further contends that the hearing and hearing panel were unfair to him in 

several ways. None creates a genuine issue of material fact as to gender bias.
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First, John Doe points out that Taylor asked him at each hearing whether he took 

responsibility for the charges against him, though that was not mandated by EGP 

procedure. But John Doe does not explain how this evinces gender bias.

Next, John Doe contends two of the three panel members, Moran and Bary, had a 

conflict of interest based on their prior knowledge of Jane Doe 2. But John Doe admits

that, although Moran had been on a lunchtime panel discussion with Jane Doe 2, she did 

not recognize her name when reviewing her file, and that Bary did not know Jane Doe 2 or 

her major and did not discuss the case with his wife, a University professor who may have 

known her because she taught courses in the same department in which Jane Doe 2 was 

majoring. Thus, no conflict of interest is apparent.

Finally, John Doe contends Brogan testified in a way that was biased against him 

and that Moran’s questions were harsh in tone. John Doe’s only evidence is his subjective 

perception and speculation as to their motives. Having reviewed the recording of all three 

hearings, we see no basis to conclude that Brogan or Moran’s conduct at the hearing

evinced bias against John Doe.

7. The Hearing Panel’s Weighing of the Evidence

John Doe contends the hearing panel’s decisions demonstrate gender bias both 

because the panel misapprehended the burden of proof and because they believed Jane 

Does 1, 2, and 3 despite their alleged credibility problems and the inconsistencies in their 

stories. 

As for burden of proof, John Doe points out that the hearing panel said that it had 

found the complainants more credible than it had found him, rather than finding that the 

charges were proven by a preponderance of the evidence. This does not demonstrate bias:

by believing each complainant rather than John Doe, the panel effectively decided that 

sexual misconduct was more likely to have occurred than not, because each complainant 

indicated misconduct had occurred that John Doe denied. 

As for the hearing panel’s decision to believe the complainants rather than John 

Doe, while it is plausible to infer that disciplinary evaluators were biased against the 

respondent if “the evidence substantially favor[ed]” the respondent’s version of events but 

the evaluators “chose to accept [the complainant’s] unsupported accusatory version” 

instead, Columbia Univ., 831 F.3d at 57, the evidence in this proceeding did not 

substantially favor John Doe. 
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8. Denial of John Doe’s Appeal

Finally, John Doe contends that Dean Nelson’s denial of his appeal evinced gender 

bias because she ignored his arguments that the University’s investigation and hearing were 

procedurally flawed. He argues that Nelson ignored his arguments about “receipt of 

hearsay, bias of the panel, inability to cross-examine, inadequate notice, use of a common 

panel, the lapse of time in the complaints being brought, gender discrimination, Brogan’s 

gender bias and failure to meet the proof burden.” Appellant’s Br. at 47. John Doe also 

claims Nelson was biased because she “regularly attended sexual assault awareness events 

around campus, Women’s Studies Brown Bag Lunches, and was known as someone who 

‘worked tirelessly on the issue of . . . survivor support’ and was ‘good friends’ with Taylor.” 

Appellant’s Br. at 20–21 (quoting C. App’x at 494, 496, 505). 

We have rejected above many of the arguments that John Doe faults Nelson for 

rejecting. As for the inclusion of hearsay and the delay in the complaints being brought, 

neither violated EGP procedure, and John Doe does not argue to the contrary. Moreover, 

John Doe did cross-examine Brogan, and could have challenged the complainants’ 

testimony (admittedly in limited fashion) by submitting questions to Taylor. In any event,

this aspect of the EGP procedure did not discriminate against him. Just as John Doe was 

barred from directly cross-examining the complainants, they were barred from crossexamining him. Therefore, John Doe does not demonstrate that Nelson erroneously 

denied his appeal. Nor does Nelson’s support for sexual assault victims and awareness 

demonstrate gender bias against men. 

Accordingly, summary judgment on John Doe’s Title IX claim in favor of Colgate

was warranted.7

B. Breach of Contract and Breach of the Duty of Good Faith and Fair Dealing

Under New York law, “when a student is admitted to a school, an implied contract 

arises between the student and the school.” Dasrath v. Ross Univ. Sch. of Med., 494 F. 

App’x 177, 178 (2d Cir. 2012) (summary order) (internal quotation marks omitted). The 

contract’s terms “are supplied by the bulletins, circulars and regulations made available to 

the student.” Id. (internal quotation marks omitted). “Implicit in this contract is that the 

university must act in good faith in dealing with the student.” Id. (internal quotation

marks omitted). 

 7 As John Doe has not put forth sufficient evidence to show a disputed issue of material fact as to 

whether Colgate had a “complainant-favoring bias,” the Court will not address his contention that 

University procedures are effectively biased against men because they are biased against respondents, 

who, he contends, are almost always men. Appellant’s Br. at 26.
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It appears from his briefs that John Doe only challenges dismissal of his claim for 

breach of the duty of good faith and fair dealing and does so in a somewhat cursory manner. 

Thus, he has waived his challenge to the dismissal of his contract claim by failing to brief 

it sufficiently. Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998) (“Issues not 

sufficiently argued in the briefs are considered waived and normally will not be addressed 

on appeal.”).

The district court dismissed John Doe’s claim for the breach of the duty of good 

faith and fair dealing because it was duplicative of his breach of contract claim, which the 

district court also dismissed. Although he asserts that several alleged breaches of the EGP 

procedure “add up” to a breach of the duty of good faith and fair dealing, John Doe makes 

no argument as to why the district court was incorrect to conclude that this claim was

duplicative of his dismissed contract claim. Thus, he has waived this argument. See 

Norton, 145 F.3d at 117.

* * *

We have considered Plaintiff-Appellant’s remaining arguments and conclude that 

they lack merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk of Court