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Klocke v. The University of Texas at Arlington

United States Court of Appeals, Fifth Circuit

September 10, 2019

WAYNE M. KLOCKE, Independent Administrator of the Estate of Thomas Klocke, Plaintiff - Appellant
v.
THE UNIVERSITY OF TEXAS AT ARLINGTON, Defendant-Appellee

          Appeal from the United States District Court for the Northern District of Texas

          Before OWEN, SOUTHWICK, and HIGGINSON, Circuit Judges.

          STEPHEN A. HIGGINSON, CIRCUIT JUDGE.

         This appeal arises out of a Title IX suit for damages alleging that the University of Texas at Arlington ("UTA") discriminated on the basis of sex in disciplining student Thomas Klocke. The district court granted summary judgment to UTA. We affirm.

         I.

         In May 2016, Thomas Klocke and Nicholas Watson were enrolled in an accelerated two-week summer class at UTA. On Thursday, May 19, Watson reported to UTA administrators that he felt threatened by Klocke and would not return to class if Klocke were present. Watson gave the following account. Watson and Klocke were sitting next to each other in class when Klocke typed "gays should die" on his computer and showed it to Watson. Watson typed back, "I'm gay." Klocke verbally called Watson a "faggot." Watson told Klocke, "I think you should leave." Klocke replied, "You should consider killing yourself." Klocke changed seats about an hour later.

         Dean of Students Heather Snow referred the matter to Student Conduct Officer Dan Moore. On May 19, Moore emailed Klocke to inform him that Moore was investigating whether Klocke had violated UTA's Student Code of Conduct. Moore barred Klocke from attending or contacting anyone in the class pending further notice. Klocke responded to Moore denying that he had violated UTA policy, requesting further information, and asking to be allowed to attend class. On Friday, May 20, Moore and Klocke spoke by phone. Over the phone, Klocke did not provide a counter-narrative or otherwise dispute the allegations.

         Moore met in person with Watson on Friday, May 20. Moore thought that Watson came across as "genuinely scared and worried" and "fearful of Klocke." Watson mentioned that shortly after the confrontation, while class was still in session, Watson had emailed the professor Dwight Long and passed a note to his adjacent classmate. Moore later confirmed that Watson had relayed the same version of events to both Long and the classmate.

         Moore then met in person with Klocke on Monday, May 23. Klocke denied making homophobic comments. According to Klocke, Watson had flirtatiously called Klocke "beautiful," and Klocke responded by typing, "Stop- I'm straight." Watson continued glancing over at Klocke until Klocke told him a second time to stop. Klocke agreed that Watson had told him to leave. He explained that he later changed seats because Watson was creating a distraction by laughing and using his phone.

         Throughout the May 23 conversation, Moore noticed that Klocke continually referred to a piece of paper that "appeared to be a script or outline." When Moore asked Klocke follow-up questions, he observed that Klocke "would consult his script/outline and there were often long pauses before he would say anything." Klocke's responses, when he gave them, seemed to Moore to "lack[] any substance." For instance, Moore recalled that "at one point Klocke said that he was scared of his accuser. [Moore] asked why he was scared, and he wasn't able to tell me why. He just said he was scared."

         At the end of their conversation, Moore told Klocke that Klocke could work with classmates on a group project but that Klocke would remain barred from attending class. Moore also arranged for Klocke to take an upcoming May 24 exam in a separate space.

         On Tuesday, May 24, Moore interviewed the classmate who had been sitting closest to Watson and Klocke. The classmate had not overheard the conversation and had only noticed that "both students looked really tense." Contrary to Klocke's version of events, the classmate had not noticed Watson laughing or otherwise causing a distraction. After Klocke left, the classmate had asked Watson what happened, and Watson had passed over a note saying, "That guy called me a faggot, told me gays should die and [illegible] I should kill myself. am [sic] actually scared."

         Based on these interviews, Moore found Watson "more believable" and concluded Klocke should be held responsible for harassment, but not for making threats. Because Watson was "still very uncomfortable" with being in class with Klocke, Moore hoped to find a solution where Klocke could finish the course without attending. Moore contacted Long, who assured Moore that he could work one-on-one with Klocke outside of class and adjust Klocke's assignments as needed.

         On Wednesday, May 25, Moore and Klocke had a final meeting. Moore explained that he had concluded his investigation and was holding Klocke responsible for harassment. Klocke would be placed on disciplinary probation and would not be allowed to attend class, though he would be able to complete the course with Long's support. He and Watson would be mutually prohibited from contacting each other. The sanction would appear on Klocke's disciplinary record but not on his transcript. Klocke would have two weeks to appeal the sanction. When Klocke expressed concern that Watson might "look up where he live[d]," Moore told Klocke to contact Moore if he felt he was being harassed or stalked.

         For the next week, Klocke continued to do coursework, albeit without attending class. He completed portions of the five-part, self-paced final exam, worked on a group project with classmates, and met one-on-one with Long.

         On the evening of June 2, 2016, Klocke killed himself by shooting himself with ...


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