Appeals court reinstates Title IX lawsuit against UK over its handling of dorm rape case
University of Kentucky Police Chief Joe Monroe discouraged one of his female officers from testifying at a student disciplinary hearing as part of UK’s retaliation against a woman raped on campus in 2014, according to the woman’s Title IX civil rights lawsuit that was reinstated against the university last week.
U.S. District Judge Joseph Hood of Lexington dismissed the lawsuit filed by “Jane Doe,” as she’s identified in court records, at UK’s request in 2022.
But the 6th Circuit U.S. Court of Appeals in Cincinnati said it found a number of errors in Hood’s decision and reversed him, sending the case back to Lexington for further action.
The 6th Circuit said a reasonable juror could believe Doe has enough evidence to make her case against UK. The lawsuit has been reassigned to a new district judge, Gregory Van Tatenhove.
Among other things, the 6th Circuit said, UK could be found liable based on how it responded to evidence that Monroe interfered with a student disciplinary hearing by encouraging the rape case’s investigating officer to not attend, despite Doe requesting the officer’s testimony at the hearing.
That disciplinary hearing panel cleared the man accused of raping Doe after three previous hearing panels sided with Doe but were overturned on procedural grounds.
Doe said UK was retaliating against her for filing a Title IX lawsuit against the university a year earlier.
“The question, then, is whether Doe has created a material question as to whether the university was deliberately indifferent to retaliation by Chief Monroe. Based on the record evidence, she has,” Judge Rachel Bloomekatz wrote for the 6th Circuit.
The lawsuit should be resolved soon, Doe’s attorney, Linda Correia of Washington, D.C., told the Herald-Leader in a phone interview this week.
“This case has been pending for 10 years. It’s about time we had a trial,” Correia said.
UK disputes court’s findings
Monroe, who has been UK police chief since 2009, did not respond to requests for comment this week.
UK spokesman Jay Blanton said the university is reviewing the 6th Circuit’s decision and hasn’t decided its next move.
“However, we strongly disagree with the court’s characterization of Chief Monroe and his actions,” Blanton said.
Monroe didn’t prevent the officer from testifying, Blanton said.
Monroe simply confirmed with the officer that she had childcare demands on the day of the hearing that would prevent her from attending, according to UK’s brief at the 6th Circuit. The UK Police Department was given less than 24 hours notice about the student disciplinary hearing, too little time for the officer to find a babysitter, UK said.
Doe sued UK in 2015 for “deliberate indifference.” She alleged the university failed to protect her from sexual harassment and a sexually hostile environment under Title IX, the federal law that prohibits sex discrimination by schools that accept federal funds.
Three flawed disciplinary hearings
The woman was a freshman on Oct. 2, 2014, when she was raped by a UK football player in her Kirwan Tower dorm room, according to her suit. The accused publicly was identified as freshman defensive end Lloyd Tubman.
Police charged Tubman with first-degree rape. He pleaded not guilty. The Fayette County grand jury declined to indict him.
Over the next six months, UK held three student disciplinary hearings to investigate the alleged rape, each of which resulted in Tubman’s long-term suspension or expulsion from the university.
But a string of procedural errors during the hearings led a UK appeals board to overturn each of those decisions.
Doe sued UK on Oct. 1, 2015, nearly a year after the alleged incident. She cited not only the alleged rape but also harassment about the incident on campus, a lack of assistance from UK’s Violence Intervention and Prevention Center and the botched student disciplinary hearings that all were overturned when Tubman appealed.
By this time, Doe said in court filings, she no longer felt safe at UK. She was hospitalized for post-traumatic stress disorder, and she quit UK to attend college elsewhere.
Officer not asked to attend
UK held a fourth student disciplinary hearing in January 2017.
As part of that hearing, Doe requested the testimony of UK Police Officer Laura Sizemore, who responded to the woman’s emergency call the night of the alleged rape, escorted her to the hospital for an examination and helped investigate the incident.
But on the morning of the hearing, Doe was informed that Sizemore could not attend because she was on family leave, according to the 6th Circuit. The officer’s only testimony would be her police report, which in the end wasn’t included among the evidence the hearing panel considered in coming to its conclusion, the 6th Circuit wrote.
“That concerned Doe because Officer Sizemore could have testified to matters beyond the police report, including that Doe’s statements to police were consistent and that her behavior after the assault was consistent with having been raped,” the 6th Circuit wrote.
Doe’s credibility was attacked at the fourth hearing. Tubman’s lawyer asked if she stood to profit from her Title IX lawsuit and compared the different statements she had made about the alleged rape over the previous three years, the 6th Circuit wrote.
Days later, as the disciplinary panel deliberated, Doe’s lawyer received two anonymous tips alleging that Monroe obstructed Sizemore from testifying by suggesting that she had to stay home the day of the hearing for childcare, the 6th Circuit said.
“Unbeknownst to Doe at the time, Officer Sizemore would have made accommodations to testify, but she wasn’t asked to attend,” the 6th Circuit wrote.
“As discovery revealed, the university had waited until the Friday before the Tuesday hearing to request Officer Sizemore’s attendance from the university police department. Chief Monroe, in turn, did not approach Officer Sizemore until the day before the hearing,” the 6th Circuit wrote.
“And, according to Officer Sizemore, Chief Monroe never told her about Doe’s hearing and the university’s request to have her testify. Instead, Chief Monroe vaguely asked her to confirm generally that she did not have childcare and would therefore be unavailable the next day,” the 6th Circuit wrote.
‘Misled’ and ‘lied to’
Sizemore only realized the fourth hearing about Doe’s alleged rape was happening at all because a colleague, Officer Eric Scott, mentioned that Monroe told him to attend, the 6th Circuit wrote.
Scott, whom Tubman called as a witness, served as the UK Police liaison for the football team. Scott planned to testify that Tubman called him after the rape charge was made, denied it and asked Scott for his advice, the 6th Circuit said.
Although Scott was initially unable to testify at the hearing due to other commitments, Monroe arranged things so Scott was free to attend, unlike Sizemore, the 6th Circuit wrote.
Sizemore later told colleagues and others that she felt “misled” and “lied to,” the 6th Circuit wrote.
“Officer Sizemore stated she was confused as to why Officer Scott — who had no investigative role in the alleged rape — was going to attend, but her attendance was not required, even though she was the lead investigator on the case. If she had received proper notice of the hearing, she could have made accommodations to attend,” the 6th Circuit wrote.
The fourth hearing panel determined that Tubman was not responsible for the alleged rape, concluding that it found his denial more plausible than Doe’s accusation based on the available evidence. Doe appealed, but the UK appeals board denied her appeal.
Issuing a dissenting opinion from the 6th Circuit’s three-judge panel last week, Judge Alice Batchelder described the story behind Sizemore’s absence from the fourth disciplinary hearing as “a series of unfortunate events.”
But no reasonable juror would “conclude that Doe has a genuine issue of material fact related to educational adverse action,” Batchelder wrote. Although UK’s Title IX office “was sloppy” with its belated request for the police officers’ appearance at the fourth hearing, Doe can’t establish that Monroe or anyone else at UK was retaliating against her, the judge wrote.
“UK could have made different choices in presenting Doe’s case,” Batchelder wrote. “But, at most, UK’s missteps are just that and give no reason to construe them as retaliatory.”
This story was originally published August 14, 2024 at 7:00 AM.
