John Oirya v. Brigham Young University

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
JOHN OIRYA,
Plaintiff - Appellant,
v.
BRIGHAM YOUNG UNIVERSITY,
Defendant - Appellee.
No. 20-4052
(D.C. No. 2:16-CV-01121-BSJ)
(D. Utah)
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before TYMKOVICH, Chief Judge, HOLMES, and BACHARACH,
Circuit Judges.
_________________________________
This appeal is brought by Mr. John Oirya, a Kenyan citizen who
attended Brigham Young University. During his time there, BYU
investigated his role in separate incidents involving sexual harassment, an
effort to retaliate, perjury, and submission of false financial information.
* We conclude that oral argument would not materially help us to
decide the appeal. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G).
So we have decided the appeal based on the record and the parties’ briefs.
Our order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value if
otherwise appropriate. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).
FILED
United States Court of Appeals
Tenth Circuit
May 12, 2021
Christopher M. Wolpert
Clerk of Court
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The investigation led BYU to expel Mr. Oirya, and he sued under Title IX
and state law.
The district court granted summary judgment to BYU on these
claims. Mr. Oirya appeals the award of summary judgment, and we affirm.
I. We engage in de novo review, applying the same summary-
judgment standard that governed in district court.
We apply de novo review, exercising our independent judgment to
determine whether BYU showed the absence of a genuine dispute of
material fact and entitlement to judgment as a matter of law. See Foster v.
Mountain Coal Co., 830 F.3d 1178, 1186 (10th Cir. 2016) (de novo
review); Fed. R. Civ. P. 56(a) (standard for summary judgment). In
determining whether BYU has made this showing, we view the evidence
and all reasonable inferences favorably to Mr. Oirya. Foster, 830 F.3d at
1186.
II. BYU was entitled to summary judgment on the Title IX claims.
Title IX prohibits discrimination based on gender. Throupe v. Univ.
of Denver, 988 F.3d 1243, 1250–51 (10th Cir. 2021). Invoking this
prohibition, Mr. Oirya claims that BYU committed gender discrimination,
favoring his accuser because she was female. Though BYU did credit the
accuser’s account, Mr. Oirya has not presented evidence tying the decision
to his gender.
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A. Mr. Oirya hasn’t presented evidence creating a reasonable
inference of gender discrimination.
Mr. Oirya asserts four theories of gender discrimination:
1. Erroneous outcome
2. Selective enforcement
3. Inadequate investigation
4. Deliberate indifference
All of these theories fail as a matter of law.
1. Erroneous Outcome
Title IX prohibits a university from reaching “an erroneous outcome
in a student’s disciplinary proceeding because of the student’s sex.” Doe v.
Baum, 903 F.3d 575, 585 (6th Cir. 2018). Invoking this prohibition, Mr.
Oirya contends that BYU erroneously found sexual harassment and an
effort to retaliate against the accuser. We reject these contentions.
a. Sexual Harassment
Title IX is not violated just because a university believes a female
accuser over a male respondent. See Doe v. Univ. of Denver, 952 F.3d
1182, 1196 (10th Cir. 2020). To the contrary, Mr. Oirya had to present
evidence casting articulable doubt on the outcome and to show the
influence of gender bias. See Doe v. Trustees of Boston Coll., 892 F.3d 67,
91 (1st Cir. 2018); Yusuf v. Vassar Coll., 35 F.3d 709, 715 (2d Cir. 1994).
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Mr. Oirya presents no such evidence. He argues that he couldn’t have
committed sexual harassment because he didn’t know the accuser. But this
argument does not fit the accusation. Mr. Oirya was accused of putting a
piece of paper on his lap, holding it with his left hand, unzipping his jeans,
and putting his right hand inside his jeans to aggressively scratch his
crotch. These accusations didn’t imply or require Mr. Oirya’s familiarity
with the accuser.
b. Effort to Retaliate
BYU found not only sexual harassment but also an effort to retaliate
against the accuser. Here too Mr. Oirya questions the accuracy of the
outcome, alleging gender discrimination. But again we see no evidence of
gender discrimination.
The parties agree that Mr. Oirya met with male classmates after the
allegation had surfaced. BYU ultimately concluded that in these meetings,
Mr. Oirya had tried to learn the accuser’s identity. Mr. Oirya doesn’t
question this conclusion. But he insists that he wanted only to take the
accuser to lunch and apologize. But once he learned the accuser’s identity,
he instead insulted her (calling her rude, strange, and hostile) and
suggested that she was obsessed with pornography. Given these actions,
Mr. Oirya’s innocent explanation for the meeting does not cast meaningful
doubt on BYU’s finding of an effort to retaliate.
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Mr. Oirya points out that two of the classmates said that he hadn’t
retaliated against the accuser. But they acknowledged that Mr. Oirya had
tried to learn the accuser’s identity.
Given Mr. Oirya’s effort to learn the accuser’s identity and his later
treatment of her, no factfinder could reasonably blame gender
discrimination for BYU’s finding of an effort to retaliate.
c. Plagiarism and Submission of False Financial Information
BYU also found plagiarism and submission of false financial
information to the university. Mr. Oirya challenged these findings, but the
district court granted summary judgment to BYU on this challenge.
On appeal, Mr. Oirya argues that the court erroneously reasoned that
BYU had acted properly even if it had discriminated based on gender. But
this argument misstates what the district court said. The court said only
that Mr. Oirya had not disputed the allegations involving plagiarism and
submission of false information.
But we may assume, for the sake of argument, that he had disputed
these allegations. He still hasn’t said how BYU’s findings would reflect
gender bias.
2. Selective Enforcement
Mr. Oirya claims not only an erroneous outcome but also selective
enforcement. For this claim, Mr. Oirya identifies his accuser as a female
who obtained more favorable treatment in the course of the university’s
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investigation. “But allegations regarding the University’s treatment of [Mr.
Oirya’s] accuser do not support his claim that a female in similar
circumstances—i.e., a female accused of sexual harassment [and
retaliation]—was treated more favorably.” Rowles v. Curators of Univ. of
Mo., 983 F.3d 345, 359 (8th Cir. 2020).
On appeal, Mr. Oirya theorizes that the district court granted
summary judgment without considering whether BYU’s factual
determinations were supported by substantial evidence. But Mr. Oirya did
not raise this theory in the amended complaint or in his response to the
summary-judgment motion.
Mr. Oirya waited to present the theory in his motion for relief from
the judgment. But it was too late for him to raise a new theory in that
motion. See Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th
Cir. 2000). The court could not find a genuine issue of material fact on the
presence of substantial evidence if BYU had no need to muster evidence
supporting its factual finding.
3. Inadequate Investigation
Mr. Oirya also bases gender bias on deficiencies in BYU’s
investigation. In our view, however, no reasonable factfinder could infer
gender bias from BYU’s steps to investigate the allegations. BYU
interviewed eleven witnesses and gave Mr. Oirya ample opportunities to
respond to each allegation.
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Despite these opportunities, Mr. Oirya contends that BYU failed to
interview the individuals who had taught the accuser, some of the students
in the classroom when Mr. Oirya had allegedly committed sexual
harassment, and students in the classroom in the days following the
incident. But Mr. Oirya does not say what these individuals could have
added or how BYU’s investigative choices reflected gender bias.
4. Deliberate Indifference
A university “may be liable under Title IX provided it (1) has actual
knowledge of, and (2) is deliberately indifferent to, (3) harassment that is
so severe, pervasive and objectively offensive as to (4) deprive access to
the educational benefits or opportunities provided by the school.” Rost ex
rel. K.C. v. Steamboat Springs RE-2 School District, 511 F.3d 1114, 1119
(10th Cir. 2008).
Focusing on the element of deliberate indifference, Mr. Oirya asserts
that BYU ignored his allegations that the accuser had lied. But BYU
considered these allegations and rejected them. In the appeal, Mr. Oirya
refers to no evidence suggesting deliberate indifference. In the absence of
such evidence, BYU was entitled to summary judgment on this theory of
liability.
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B. The district court didn’t fail to consider Mr. Oirya’s
arguments about termination of his employment and
prohibition from entering campus.
Before the accusations surfaced, Mr. Oirya had worked at BYU as a
graduate assistant. When BYU expelled him, it also terminated his
employment as a graduate assistant and prohibited him from entering the
campus.
Mr. Oirya disagrees with these actions and argues that the district
court failed to consider his claims challenging termination of his
employment and prohibition from entering the campus. But Mr. Oirya had
not presented these as distinct claims. His claims involved only challenges
to the university’s investigation and decision to credit the accuser’s
account. Mr. Oirya presents no separate reason to question his termination
of employment or prohibition from entering the campus based on findings
of sexual harassment and an effort to retaliate. So the district court did not
err by declining to consider these as distinct claims.
III. The district court did not overlook Mr. Oirya’s claim involving
violation of immigration law.
When foreign students study at a university, it must maintain an
active record in the Student and Exchange Visitor Information System. So
BYU maintained this record for Mr. Oirya while he was actively enrolled.
When he was suspended, however, the university terminated this record.
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Mr. Oirya claims that BYU violated the law by prematurely terminating
this record.
In the complaint, Mr. Oirya had based the claim on federal law. But
in responding to a motion to dismiss, he conceded that the motion was
well-taken and agreed to dismissal. So the district court dismissed this
claim. On appeal, he recharacterizes the claim as one based on state law.
But in district court, he had based the claim on federal law. Given his
concession in district court, no immigration law claim remained (under
either federal or state law) when BYU moved for summary judgment.
Affirmed.
Entered for the Court
Robert E. Bacharach
Circuit Judge
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