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Oirya v. Brigham Young University

United States District Court, D. Utah

January 9, 2020

JOHN OIRYA, Plaintiff,



         Judge Bruce S. Jenkins On December 4, 2019, the Court heard oral arguments on Defendant Brigham Young University's ("BYU") Motion for Summary Judgment.[1] Having considered the Motion, Plaintiff John Oirya's Opposition, [2] BYU's Reply, [3] and the arguments presented during the hearing, and for good cause appearing, the Court hereby GRANTS BYU's Motion and dismisses with prejudice all of Mr. Oirya's claims as detailed below:

         Standard of Review

         "Summary judgment is appropriate when there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." Hardscrabble Ranch, L.L.C. v. United States, 840 F.3d 1216, 1219 (10th Cir. 2016). The movant "need only point to those portions of the record that demonstrate an absence of a genuine issue of material fact given the relevant substantive law." United States v. Simons, 129 F.3d 1386, 1388 (10th Cir. 1997) (quoting Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir. 1992)).

         Undisputed Facts

         Rule 56(c)(1) of the Federal Rules of Civil Procedure states "[a] party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (a) citing to particular parts of materials in the record... or (b) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Moreover, "[t]he court need consider only the cited materials." Fed. R, Civ. P. 56(c)(3). With this rule in mind, and after a thorough review of the parties' briefs and properly cited, submitted, and admissible evidentiary materials, the Court determines that the following facts are undisputed:

1. Mr. Oirya was a BYU student from 2002 to 2013, [4]
2. In the winter semester of 2013, however, he was accused of three separate incidents of student misconduct: 1) admissions and immigration fraud; 2) plagiarism; and, 3) sexual misconduct toward a female student.[5]
3. Regarding the first incident, on January 10, 2013, BYU gave Mr. Oirya a document entitled "Allegation and Invitation to Respond" accusing him of "falsely claim[ing] that he was receiving [required] funding" for his education from the Kenyan government and supplying "forged documents" in support of that claim.[6]
4. On January 25, 2013, BYU gave Mr. Oirya another "Allegation and Invitation to Respond" document accusing him of the remaining two violations of university policy: 1) plagiarism in an assignment and in a "Linguistics Masters [thesis] proposal, "; and 2) an allegation of sexual harassment.[7]
5. The plagiarism allegation charged Mr. Oirya with copying significant portions of his academic writing from sources available publicly, such as Wikipedia, and failing to adequately attribute scholarly research.[8]
6. Regarding the sexual harassment accusation, the January 25, 2013 document explained that a female student had accused Mr. Oirya, while in class, of "plac[ing] a piece of paper on his lap, unbutton[ing] and unzip[ing] his pants, h[olding] the piece of paper on his lap with his left hand and reach[ing] into his open pants with his right hand." Mr. Oirya also "engaged in retaliatory behavior" by "call[ing] together the male students" in their class "to learn the identity of the female who had reported him .. . [, ]" as BYU originally kept the accuser's identity confidential.[9]
7. These documents invited Mr. Oirya to "prepare [his] own personal written response" and promised him a "reasonable time" to do so.[10]

         Mr, Oirya's response to the yla&iarism allegations.

8. On February 4, 2013, Mr. Oirya submitted a four-page written response, with twenty-six pages of exhibits, to the allegation that he plagiarized an assignment. He did not deny the plagiarism. Rather, he blamed his professor and B YU generally for not adequately teaching him that "substantially lift[ing] from Wikipedia ... is a form of plagiarism."[11]
9. The same day, he submitted a separate five-page response, with fifteen pages of exhibits, to the allegation of plagiarism in his master's thesis. He similarly did not deny that plagiarism but said his professors "could have acted more responsibly in helping [him] avoid the alleged charges of plagiarism" but did not give him "critically needed feedback." He speculated "their feedback could have made a big difference in enabling [him] to avoid plagiarism . .. ."[12]

         Mr. Oirya's response to the sexual harassment allegations.

10. Mr. Oirya was provided a copy of the unidentified Title IX accuser's written complaint.[13]
11. On January 14, 2013, the accuser met with another professor in the Mass. Communications Program, Dr. Plowman, who told her that Mr. Oirya "was having a meeting with all the guys in the program." The accuser later spoke to one of those men who said that Mr. Oirya, "was trying to figure out who made the report."[14]
12. The accuser later said she was "in a constant state of anxiety" as a result of Mr. Oirya's conduct. "For the first time in my life I am wearing a 'rape whistle' at all times," she wrote. She further explained that if Mr. Oirya was allowed to stay in the program, she would have to consider "dropping out of the program and leaving BYU."[15]
13. On February 14, 2013, Mr. Oirya submitted an eight-page response, with 17 pages of exhibits, to the Title IX allegations.[16]
14. In his response, Mr. Oirya called the allegations "categorically false, unfounded, inconceivable and slanderous," but also invited "necessary disciplinary actions" if BYU "determines this charge to be substantiated .. .."[17]
15. Mr. Oirya's response largely consisted of explaining that "no normal person" would have reacted as the accuser did.[18]
16. Mr. Oirya also denied asking classmates for the name of his accuser. He acknowledged, however, that he met with his male classmates but claims it was merely to ask "my close friends (such as my classmates) for suggestions and guidance on how to proceed forward with this matter."[19]
17. Mr, Oirya also wrote that the accuser had "brought upon herself unnecessary 'anxiety' and unjustified 'psychological toll' by choosing to misconstrue my intentions and perceive me only in a bad light." He further stated, "if I were to be given the opportunity to know who this individual is, I would be glad to take her to lunch, and apologize to her for the pain and suffering that I might have inadvertently caused to her."[20]
18. Recognizing that Mr. Oirya could not fully respond without knowing the accuser's identity, BYU obtained permission from the accuser and provided her identity to him, whereupon Mr. Oirya submitted another four-page response on February 25, 2013.[21]
19. In his additional response, Mr. Oirya explained he had always treated his accuser as a friend but had "mostly felt some sense of lukewarm welcome and hostility from her." Given her "lukewarm and hostile" attitude, Mr. Oirya speculated that "any minor or trivial act on my part (be it real, perceived, imagined or even contrived) could have triggered such an accelerated and uncontrollable hyper-reaction from [the accuser] toward me."[22]
20. Mr. Oirya's subsequent response also offered speculation about why his accuser might have raised allegations against him. "I might have tucked my un-tucked shirt or T-shirt into my pants as an act of trying to dress modestly. However, the complainant might have misconstrued my actions to be 'scratching' my crotch."[23]

         Mr. Oirya's response to the academic fraud allegations.

21. As a foreign student, Mr. Oirya was required by law and university policy to have proof of financial stability to support himself in the United States. As such, he, or his uncle, submitted a letter, purportedly from the Kenyan government, showing financial support.[24]
22. During a routine check of his financial documents, however, B YU's International Student Services Office ("ISSO") contacted the Kenyan embassy and was informed for the first time that the letter may be fraudulent, whereupon BYU launched an investigation and informed Mr. Oirya of its concerns about his documentation.[25]
23. Mr. Oirya did not provide a formal written response to this admissions fraud allegation, but on October 3, 2012, he transmitted an email to ISSO Director Sam Brown indicating, "I spoke with the Kenyan embassy staff and they [also] told me that there could be a problem with the authenticity of my Bursary offer letter."[26]
24. Mr. Oirya directed BYU to discuss the fraud allegation with his uncle, Mr. Fred Odhiambo, who Mr. Oirya alleged "had information on [that] allegation" and could "respond to BYU on behalf of Mr. Oirya."[27]
25. On October 17, 2012, Mr. Odhiambo emailed Mr. Brown informing him that "some ministry people were colluding with conmen not to forward [the bursary money]" and Mr. Oirya was "becoming a victim of an evolving syndicate that was trying to divert his bursary money to some underground deals."[28]
26. On November 8, 2012, Mr. Odhiambo emailed Mr. Brown again, stating "the money was being delayed in being processed" because "some individuals in the government [] were working on diverting this money to themselves." He also explained that "[t]he Kenyan Embassy in Washington, DC USA is directly involved in this matter and is keenly following up on the outcomes of die ongoing investigations. It will keep you posted."[29]
27. However, Mr. Oirya was never able to demonstrate he had the financial backing from the Kenyan government that he previously had claimed in the admissions process, and no one from the Kenyan Embassy ever contacted BYU or authenticated the letter.[30]
28. During his deposition, Mr. Oirya acknowledged he never received money from the Kenyan government.[31]

         BYU's Fair Investigative Steps 29. During BYU's investigation of the sexual harassment, Mr. Oirya met with BYU Title IX Investigator Melba Latu to discuss the allegations.[32]

30. He met at least twice with BYU Title IX Coordinator Sarah Westerberg to discuss the allegations.[33]
31. He met at least twice with BYU's ISSO Director Sam Brown to discuss the admissions fraud allegations, and testified to meeting "multiple times" with Ms. Westerberg and Mr. Brown during the investigative process.[34]
32. Mr. Oirya also had "at least three, maybe four meetings" with BYU Associate Dean of Students Neal Cox to discuss the allegations.[35]
33. Mr. Cox described his interactions with Mr. Oirya during the investigation as follows:
More than any student I ever worked with in 20 years, John was demanding information far and way beyond what we ordinarily would supply students with. I attempted to be patient. I attempted to do all I could to supply what information he had a legal right to and access to.. . I wanted to be thorough, but I was anxious to conclude mis matter which had extended out for a long period of time, much longer than most any honor code case I remember working with.[36]
34. BYU personnel also interviewed at least five fact witnesses while investigating the foregoing allegations.[37]

         Mr. Oirya's Suspension and Dismissal 35. On March 4, 2013, after Associate Dean Neal Cox interviewed Mr. Oirya and, after "a thorough review of available information," BYU suspended Mr. Oirya.[38]

36. Mr. Oirya exercised his rights to "request an administrative review [] of any Decision resulting in a disciplinary action." Pursuant to BYU's policy, the review was directed to the Dean of Students Vernon Heperi, who had the authority to "modify the sanction applied to the student based upon the [r]eview."[39]
37. On March 19, 2013, Mr. Oirya met with Mr, Cox and Mr. Heperi so that Mr, Heperi could interview Mr. Oirya for the administrative review.[40]
38. Immediately following that meeting, Mr. Oirya emailed Mr. Heperi, "It was great to have a review with you ... I had earlier [] feared that I might not be given any opportunity to speak" during the appeal, but "you met and exceeded these expectations ... I can now recommend any student to come and directly talk to you more openly, contrary to my earlier fears that I had about you."[41]
39. After meeting with Mr. Oirya, Mr. Heperi exercised his powers under the Honor Code Policy and modified the sanction against Mr. Oirya to permanent dismissal from the university. In a letter dated March 20, 2013, Mr. Heperi stated to Mr. Oirya as follows: "After carefully reviewing your most recent violations of the Honor Code, i.e., inappropriate gender-based behavior and admission fraud, and in light of your past history of misconduct at the university I have determined to dismiss you from Brigham Young University."[42]

         Mr. Oirya Apylies to Auburn University

         40. On January 20, 2013, well before his suspension and dismissal from BYU, Mr. Oirya submitted an application to Auburn University for matriculation into its Ph.D. program in business management.[43]

         41. The Auburn application asked Mr. Oirya to "[l]ist in order (most recent first) all colleges and universities [he had] attended." Mr. Oirya did not list his most recent ...

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