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Pacheco v. St. Mary's University

United States District Court, W.D. Texas, San Antonio Division

June 20, 2017

ST. MARY'S UNIVERSITY, et al., Defendants.



         Plaintiff Alfonso Pacheco was a student at defendant St. Mary's University, a private Catholic university located in San Antonio, Texas. He was suspended from the university following accusations and a subsequent finding that he committed violations of the university's Code of Conduct for sexual harassment against a fellow student and conduct inconsistent with the university goals and values. Pacheco sued St. Mary's, as well as two members of the St. Mary's Police Department, Officer Apolonia Vargara and Officer Francisco Osuna, alleging that St. Mary's procedures in investigating and disciplining students "discriminates against men who are accused of sexual misconduct on the basis of their sex" and are "fundamentally unfair." Compl. 1, ECF No. 1. Pacheco's complaint raises claims for breach of contract, violation of Title IX of the Education Amendments Act of 1972, [1] negligence, violation of the Fifth and Fourteenth Amendments to the United States Constitution, and for declaratory relief under 22 U.S.C. § 2201.

         Defendant St. Mary's and defendants Osuna and Vargara separately moved for summary judgment. ECF Nos. 20 & 21. Before the Court are defendants' summary judgment motions, plaintiff s respective response, ECF No. 25, and defendants' joint reply, ECF No. 29. Also before the Court is defendant's joint motion to exclude plaintiffs summary judgment evidence as irrelevant pursuant to Rule 402 of the Federal Rules of Evidence. ECF No. 30. Plaintiff did not respond to the motion to exclude. For the reasons articulated below, the Court finds that the motion to exclude should be DENIED, and the motions for summary judgment should be GRANTED.


         On the night of May 2, 2014, Alfonso Pacheco, a senior male student, took complainant, a junior female student, to the Kappa Sigma formal, which was held at a bar in downtown San Antonio called the Cadillac Bar. Pacheco and the complainant consumed alcohol prior to and during the formal. The two returned to campus, along with four other students, in the early morning hours-approximately 1:30 a.m. The other students in the car were Brian Zavala, Crystal Zapata, Mia Silva, Christopher Trevino, and Jamie De Los Santos (the driver). According to the others, Pacheco and the complainant were "making out" and exchanging sexually explicit language regarding acts they wanted to perform on each other. When the car arrived at campus, Trevino, Pacheco, and the complainant exited for the Chaminade Residence Hall. Pacheco and the complainant went upstairs to Pacheco's room on the second floor.

         Across the hallway from Pacheco's room, Azalea Griego and Fabian Hernandez were watching movies. Pacheco apparently was having trouble unlocking the door to his room due to being highly intoxicated-he was trying to open his dorm room with his mailbox key. The complainant, who was familiar with Griego, asked Hernandez if he would help Pacheco open the door. Hernandez helped Pacheco open the door and deliberately switched the locking mechanism to remain unlocked. Pacheco entered the room and unbuckled his pants, telling Hernandez "It's ok bro, I have protection." Pacheco showed Hernandez that he had a condom. Griego asked the complainant if she needed to be taken to her dorm room, but complainant responded "No, I need you to take me to where Pattie's [a sorority sister] at." Trevino returned and told Hernandez and Griego that he would handle the situation. Griego and Hernandez went back to their room. Trevino took complainant and Pacheco into Pacheco's room.

         Griego called Pattie-Patricia Escobedo--to tell her about the situation. Escobedo said that she knew Pacheco and that she trusted him. Griego and Hernandez then went to the laundry room, and Hernandez told Griego that Pacheco had showed him a condom saying "I have protection." Griego said she was going to call Pattie. They returned from the laundry room and listened to through the door of Pacheco's room. Griego called spoke to Pattie, telling her that Pacheco had unbuckled his pants and produced a condom, Pattie told her to "get [the complainant] out of there" and to bring the complainant to Pattie's room.

         Griego and Hernandez knocked on Pacheco's door, but knew the door was unlocked from when Hernandez had helped Pacheco open his door. They the heard bed-spring squeak, a thump, and plaintiff yell "turn around." Griego and Hernandez opened the door and entered the room. Pacheco was standing with his pants and underwear around his ankles, attempting to remove the complainant's underwear. She was lying motionless, face-down with her legs off the side of the bed and her dress pulled over her thighs. Pacheco had an erection. Griego believed the complainant was unconscious and pushed Pacheco out of the way. Hernandez carried the complainant out of the room. She was mostly mumbling unintelligibly, but Hernandez heard her say something like "I'm so embarrassed." Griego and Hernandez took complainant to Pattie's room in John Donohoo Hall. After Pattie returned, she spoke with Griego and attempted to call a sorority advisor. Pattie got no answer. She then called the University Police Department to report the incident. Officers Apolonia Vargara and Francisco Osuna took the call and responded to John Donohoo Hall. The officers were joined by Patricia Lathen, St. Mary's Director on Duty, who was present while the officers spoke with Pattie and Griego. The officers were not able to speak with complainant due to her level of intoxication. Griego and Pattie informed them that the complainant's belongings were still in Pacheco's room.

         Officers Vargara and Osuna, accompanied by Director Lathen, went to Pacheco's room in ChaminadeHall. Pacheco answered the door, and the officers noted the smell of alcohol. Pacheco appeared intoxicated and there was vomit on the floor, sink, and cabinets of the room. They asked if anyone had been in the room that evening, which Pacheco denied. When asked about a female shoe visible on the floor, Pacheco said it belonged to him. Officer Vargara noticed the complainant's purse under Pacheco's bed. When asked who the purse belonged to, Pacheco admitted that it belonged to the complainant and that she had been in his room but left because she was tired. The officers gave Pacheco clothing to wear, placed him in handcuffs, and arrested him. They escorted him out of the dormitory, down a flight of stairs, and to the police station. Pacheco was apparently able to walk under his own-power.

         At the police station, Pacheco was Mirandized and agreed to speak with the police. He said he had invited the complainant out on a date, that they had been drinking at the Cadillac Bar, and that they returned to the university that night. However, Pacheco claimed that the complainant wanted to go back to her dorm because she was tired, and that Pacheco told her to go to her room because she was too intoxicated. After the interview with police, Pacheco was transported to the magistrate's office for criminal charges of Attempted 3rd Degree Sexual Assault, Texas Penal Code §§ 15.01, 22.011. Those charges were referred to the Bexar County District Attorney. While at the Bexar County Jail, Pacheco was given notice of a temporary suspension excluding Pacheco from all university facilities, property, and events for the duration of the suspension.

         The next morning, May 3, 2014, the complainant was interviewed by Captain Jeff Earle. The complainant remembered having a drink before the formal, and two margaritas at Cadillac Bar. According to her statement, the last thing complainant remembered at Cadillac Bar was line dancing and sitting down at a table. The next thing she remembered was being woken up in Pattie's dorm room. She apparently did not remember how she got there or what had happened in Pacheco's room. After speaking with Captain Earle, the complainant spoke with Tim Bessler, Dean of Students at St. Mary's University. Bessler told her that "everything would be okay" and that she had "done nothing wrong." He explained that the university would respond by selecting a panel to investigate the matter, and that any resulting charges would fall under Title IX. If the investigation found sufficient evidence to support formal charges for a violation of university policy, Pacheco would be charged and have the right to a disciplinary hearing to determine whether he was responsible for the charges.

         The grievance procedure regarding violations of the St. Mary's Code of Conduct consists of three phases. First, is the investigation phase. According to the Student Handbook, formal investigations may be conducted to resolve factual disputes. A fact-finding panel may consist of no more than three persons from the university. In appointing the panel, a supervisor must state the terms and conditions of the investigation. The panel has no authority to make recommendations or impose final actions. Rather, the panel presents facts to the supervisor, and the supervisor determines the proper disposition based on a hearing.

         The second phase is this hearing phase. The procedures observed in the hearing are as follows:

i. The hearing will be conducted f n private. Judications of Irresponsible discussion of the grievance outside of the formal hearing may become the basis for allegations that due process has been violated. AH parties to the hearing are cautioned against irresponsible discussion. The parties will make no public statements about the case during the course of the hearing.
ii. During the proceedings, all parties will be permitted to have an advisor present All parties to the grievance will have the right to obtain witnesses and present evidence. The University will cooperate with all parties in securing witnesses and making available documentary and other evidence requested to the extent permitted by law.
iii. All parties have the right to question witnesses, however, the accused and the accuser may not question each other. When a witness has made a written statement and cannot or will not appear, but the chair determines that the interests of justice require admission of that statement, the Chair will identify the witness, disclose the statement and if possible, provide for interrogatories. The Chair will also grant appropriate continuances to enable either party to investigate evidence, or for any other appropriate reason.
iv. Inall cases, the burden of proof shall be on the grievant However, the Chair will not be bound by strict rules of legal evidence. The decision will take the form of findings of fact, conclusions, and recommended disposition of the grievance. The findings of fact, conclusions, and recommended disposition must be based solely on the hearing's record, pertinent University procedures set forth in this statement, and the laws of the State of Texas and the United States of America.

ECF No. 20-9. The result of the hearing must be reported to students in writing within ten days of the date the grievance was received. If the hearing extends beyond ten days, the supervisor must inform the student of the delay and the expected response date. Students must also be informed that they have the right to seek appeal.

         The third phase is the appeals phase. Students may seek review of the disposition by the appropriate Vice President. The Vice President's decision "should be transmitted to the student within ten (10) working days from the date the written appeal was received." ECF No. 20-9. The Vice President's decision constitutes final agency action.

         On the evening of May 3, 2014, Pacheco was released on bail from Bexar County Jail. The next day he noticed some bruising on his arms, apparently from where the officers gripped his arms escorting him to the police station. Pacheco was informed by John Wickline, the Director of Judicial Affairs at St. Mary's, that Pacheco was temporarily suspended, pending an investigation and that he was not allowed to enter campus without permission, Pacheco arranged a meeting with Bessler on or about May 5th. Bessler explained the suspension and investigation process, and outlined Pacheco's due process rights articulated in the Student Handbook. Pacheco informed Bessler that he would not speak about the incident without an attorney present. Following the meeting, Pacheco retained an attorney.

         On June 3, 2014, Pacheco was informed of the results of the university's investigation. The investigatory panel was made up of three panelists: Carmen Nasr, an Assistant Director of Residence Life, Benjamin Underwood, an Assistant Director of the University Center and Conference Services, and Jasmine Ellis, Athletics Compliance Officer. The panel interviewed the complainant, as well as Griego, Hernandez, Trevino, Pattie Escobedo, and Adrianna Cortez, a friend of Escobedo's who was present at the time of the incident. Pacheco refused to participate and was not interviewed. The panel summarized the interviews in a report dated May 29, 2014, and concluded that there was evidence that Pacheco violated the Code of Conduct. Specifically, Article II Point B for sexual harassment, Article II Point B for attempted sexual assault, and Article II Point A for conduct inconsistent with the Christian goals and values of the university.[2] The June 3, 2014 notice requested Pacheco to schedule a meeting to discuss the next steps in the process.

         Around July 9, 2014, Pacheco and his attorney reviewed the witness statements and other documents used by the investigation board.

         On July 29, 2014, the university convened a hearing to determine whether Pacheco would be found responsible for violations of the University Code of Student Conduct. The hearing panel was made up of three panelists: Karen Williams, James Villareal, and Kathe Lehman-Meyer. Neither the complainant, nor Pacheco or his attorney, attended the hearing. No witnesses were called by the absent parties. Rather, the panel reviewed statements given to the investigators, including the statement by the complainant. Pacheco had not given an interview to the investigators and did not present evidence, so the panel did not consider his version of events.

         On August 5, 2014, the judicial board found Pacheco not responsible for sexual assault but responsible for sexual harassment and conduct violating the university's goals and values. Accordingly, he was suspended and restricted from being on St. Mary's University property until August 1, 2017. Pacheco was informed he had the right to submit an appeal, in writing, to the Dean of Students-Bessler-within five days. The notice included a link to the Code of Conduct in the Student Handbook for details on the appeals process outlined above.

         On August 11, 2014, Pacheco filed an appeal on the basis that he did not have a reasonable opportunity to prepare and present rebuttal of allegations against him, that the hearing was not conducted fairly in light of Dean Bessler's previous interactions with the complainant, and that the investigative team did not interview all students with knowledge of the incident. The appeals board convened on August 28, 2014 to review Pacheco's appeal. The board consisted of Leah Bowen, Brian Martinek, and Jaqueline Peiia. The appeal board found that Pacheco had a reasonable opportunity to prepare and present rebuttal of said allegations, that the hearing was conducted fairly, and that the investigative team did not exclude evidence. Specifically, the board determined that Pacheco was sent a copy of his conduct record with redacted names of students who had not consented to having their records released outside the university. Further, the board determined that Pacheco was aware of the guidelines and procedures of the investigative process, as articulated in the Student Handbook. The board also noted that Pacheco chose not to participate in the hearing, despite having the opportunity to present and question witnesses, and did not identify any additional persons with knowledge of the incident to the investigative board. Finally, the board determined that Bessler's comments to the complainant that she had done nothing wrong, did not show bias or favoritism or render the hearing unfair. The board wrote:

The original hearing was conducted fairly in light of the charges and evidence presented. Mr. Pacheco particularly called Into questions a statement made by the Dean of Students, Dr. Tim Bessler. Dr. Bessler told the complainant that she had done nothing wrong. After Interviewing Dean Bessler the appeals board was able to understand the context of this statement. The statement was made to address a level of support for the complainant, it was not a comment directed toward the Incident Itself. The complainant was concerned about the consequences of her speaking about the Incident to the Dean of Students, police, etc. This Is what Dr. Bessler was referencing when he stated she "did nothing wrong." The Dean of Students also shared that It Is his responsibility to show care and support for all students. The Appeals Board also noted that this statement Is provided In the same document that Mr. Pacheco is referring to.

         The disposition of the original judicial body was affirmed by the appeals panel on September 3, 2014. At some point, the criminal charges were dropped, and the only discipline imposed for the incident was through the St. Mary's proceedings. Pacheco's suspension from St. Mary's remains in effect until August 1, 2017. While he missed his graduation ceremony due to the suspension, he was conferred a degree and is a graduate of St. Mary's.

         These facts are largely undisputed.[3] However, there are some key disputes over additional details. First, the parties dispute whether the complainant was passed out in the room with Pacheco before Hernandez and Griego entered, or whether she had consented to sexual intercourse with Pacheco. Second, the parties also dispute whether Pacheco was told that he was not allowed access to an attorney during the investigation and appeals process. Third, the parties dispute whether Pacheco was told that he would not be allowed to cross-examine witnesses or introduce evidence, such as a cell phone video of Pacheco and the complainant making out during the ride back to campus. Fourth, the parties dispute whether the police officers "roughed up" Pacheco after the arrest, denied him access to water or a bathroom at the police station, or otherwise used excessive force in violation of his constitutional rights during his arrest. This action arises from those disputed allegations.


         On December 17, 2015, Pacheco filed the instant suit alleging five claims: (1) breach of contract, (2) violation of Title IX, (3) negligence, (4) violation of constitutional rights, and (5) a declaratory judgment that St. Mary's rules, regulations, and guidelines are unconstitutional or unlawful. Compl. 15. On March 1, 2017, defendants moved for summary judgment, arguing that plaintiffs claims fail as a matter of law. ECF Nos. 20 & 21. Specifically, St. Mary's argued that there is no Title IX theory of liability under which Pacheco can recover and that there was no breach of contract or negligence on the part of St. ...

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