United States District Court, D. Utah
MEMORANDUM DECISION AND ORDER GRANTING DEFENDANT
BRIGHAM YOUNG UNIVERSITY'S MOTION FOR SUMMARY
S. JENKIMS U.S. SENIOR DISTRICT JUDGE
Bruce S. Jenkins On December 4, 2019, the Court heard oral
arguments on Defendant Brigham Young University's
("BYU") Motion for Summary Judgment. Having considered
the Motion, Plaintiff John Oirya's Opposition,
BYU's Reply,  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:
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)).
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
1. Mr. Oirya was a BYU student from 2002 to 2013,
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.
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
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.
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.
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.
7. These documents invited Mr. Oirya to "prepare [his]
own personal written response" and promised him a
"reasonable time" to do so.
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
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 . .. ."
Oirya's response to the sexual harassment
10. Mr. Oirya was provided a copy of the unidentified Title
IX accuser's written complaint.
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."
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."
13. On February 14, 2013, Mr. Oirya submitted an eight-page
response, with 17 pages of exhibits, to the Title IX
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 .. .."
15. Mr. Oirya's response largely consisted of explaining
that "no normal person" would have reacted as the
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
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
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.
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
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
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.
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
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."
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.
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
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
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
28. During his deposition, Mr. Oirya acknowledged he never
received money from the Kenyan government.
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
30. He met at least twice with BYU Title IX Coordinator Sarah
Westerberg to discuss the allegations.
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
32. Mr. Oirya also had "at least three, maybe four
meetings" with BYU Associate Dean of Students Neal Cox
to discuss the allegations.
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
34. BYU personnel also interviewed at least five fact
witnesses while investigating the foregoing
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.
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."
37. On March 19, 2013, Mr. Oirya met with Mr, Cox and Mr.
Heperi so that Mr, Heperi could interview Mr. Oirya for the
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
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
Oirya Apylies to Auburn University
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
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