United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
RANDOLPH D. MOSS United States District Judge.
Plaintiff
Erin Cavalier alleges that she was sexually assaulted in her
dorm room by a fellow freshman at Defendant Catholic
University of America (“the University”).
According to her complaint, she was “heavily
inebriated” at the time of the assault, was
“incapable of consenting, ” and “remembers
only finding” the other student-referred to as
“John Doe” for purposes of this lawsuit-“on
top of her engaging in sexual intercourse.” Dkt. 1 at
10-11 (Compl. ¶¶ 37, 40-41). She immediately
reported the assault to the University. The University
conducted an investigation but concluded that there was
insufficient evidence to justify moving forward with
disciplinary proceedings against Doe. Cavalier disagreed with
that decision and continued to press for a disciplinary
hearing. In support of her effort, she produced a toxicology
report taken several hours after the alleged assault, which
showed by “retrograde extrapolation” that her
blood alcohol level at the time of the alleged assault was
“almost three times the legal limit” for driving
a motor vehicle. Id. at 12 (Compl. ¶ 48).
Eventually, the University agreed to hold a hearing, and it
instructed that Cavalier and Doe avoid any
“direct” or “indirect” contact with
one another. Dkt. 1-5 at 2; Dkt. 1 at 18 (Compl. ¶ 74).
The outcome, however, did not change. The hearing board
“found that no force was involved, that [Cavalier was]
not incapable of giving consent, and that [Doe] would not
reasonably have thought that [Cavalier was] incapacitated or
unable to give consent.” Dkt. 1-6 at 2. The Dean of
Students, in turn, rejected Cavalier's appeal.
See Dkt. 1-9. Although the University did leave the
no-contact order between Cavalier and Doe “in place
indefinitely, ” Dkt. 1-6 at 1, Cavalier alleges that
Doe repeatedly violated the order over the course of the next
three years and that, despite her complaints, the University
did not redress those violations or provide her with any
related accommodations or assistance.
Against
this backdrop, Cavalier brings this action against Catholic
University under Title IX of the Education Amendments of
1972, 20 U.S.C. § 1681(a) (“Title IX”), and
D.C. tort law. She alleges that the University's
investigation and disciplinary process were “wholly
inadequate, untimely, and biased” and that the
University failed to enforce the no-contact order or
otherwise to protect her “from further harassment by
her rapist.” Dkt. 1 at 1-2 (Compl. ¶ 3). The
University's response to the assault, she contends,
violated Title IX because it was “clearly unreasonable
in light of the known circumstances” and resulted in
“severe, pervasive” harassment that deprived her
of the “educational opportunities or benefits”
the University provided to its other students. Davis v.
Monroe Cty. Bd. of Educ., 526 U.S. 629, 648-50 (1999).
The University also violated Title IX, according to Cavalier,
by retaliating against her for reporting the assault, for
pressing the University to take action, and for filing a
complaint with the U.S. Department of Education's Office
for Civil Rights. Finally, Cavalier brings three tort claims
under D.C. law. She alleges that the University (1)
negligently failed “to protect [her] from sexual
harassment, including sexual assault and a hostile
educational environment, ” Dkt. 1 at 34 (Compl. ¶
148); (2) negligently subjected her to emotional distress by
failing “to promptly, adequately, reliably, fairly, and
impartially investigate and resolve [her] complaint”
and by failing to enforce the no-contact order, id.
at 35-36 (Compl. ¶ 157-60); and (3) intentionally
subjected her to emotional distress by engaging “in
extreme and outrageous conduct” by failing to take
prompt and meaningful action in response to the alleged
assault, id. at 36 (Compl. ¶ 162).
The
University moves to dismiss Cavalier's complaint for
failure to state a claim under Title IX and D.C. tort law and
as untimely under the relevant statutes of limitations. For
the reasons explained below, the Court agrees that Cavalier
has failed to state a claim for Title IX retaliation and for
intentional infliction of emotional distress. The Court is
not convinced, however, that Cavalier's Title IX
deliberate indifference claim or remaining D.C. tort law
claims fail as a matter of law at this early stage of the
litigation. Finally, the Court rejects the University's
motion to dismiss on statute of limitations grounds. The
Court will, accordingly, GRANT in part and
DENY in part the University's motion to
dismiss.
I.
BACKGROUND
The
parties agree that the Court must take the factual
allegations of the complaint as true for purposes of the
present motion, and they agree that the Court may also
consider the multiple documents attached to the complaint.
See EEOC v. St. Francis Xavier Parochial Sch., 117
F.3d 621, 624 (D.C. Cir. 1997); Nichols v. Vilsack,
No. 13-01502, 2015 WL 9581799, at *1 (D.D.C. Dec. 30, 2015).
They disagree, however, as to how the Court should consider
the attached documents. According to the University, by
attaching the investigative reports and related
correspondence to the complaint, Cavalier incorporated the
content of those materials into her complaint and, as a
result, the Court may treat the factual assertions in those
materials as true for purposes of the pending motion to
dismiss. Dkt. 10 at 2 & n.1. Cavalier agrees that the
Court may consider the attachments, but she contends that it
should not ineluctably accept each of the assertions
contained in the attachments as true. Dkt. 9 at 16.
Cavalier
is correct. “When considering incorporation, it is
necessary to consider ‘why a plaintiff attached the
documents, who authored the documents, and the reliability of
the documents.'” Banneker Ventures, LLC v.
Graham, 798 F.3d 1119, 1133-34 (D.C. Cir. 2015)
(citation omitted). For example, by attaching a written
contract to her complaint, a plaintiff might concede that the
statute of frauds does not apply, but a plaintiff would not
concede the truth of an allegedly libelous writing by
attaching it to her complaint. Id. at 1133. The same
principle applies here. By attaching various investigative
documents and related correspondence to her complaint,
Cavalier acknowledges that the investigation occurred, that
the attached reports and correspondence are true and accurate
copies of those prepared in the course of the investigation,
and that the timeline of events is, at least in most
instances, accurate. She does not concede, however, that all
factual assertions contained in those materials-including,
most notably, those that are in tension with her current
allegations-are true. With this framework in mind, the Court
will summarize Cavalier's factual allegations, as set
forth in her complaint and as further explicated by the
attachments.
A.
Alleged Assault
According
to Cavalier, at approximately 1:00 a.m. on December 15, 2012,
she was raped by Doe, who “engaged in sexual
intercourse with her [despite] knowing [that] she was
intoxicated and incapable of giving consent.” Dkt. 1 at
10 (Compl. ¶ 34). Both Cavalier and Doe were freshmen
and had just completed their first semester at the
Univerisity. Their paths crossed at a party at Flather Hall,
a dormitory on the Catholic University campus, at about 11:00
p.m. on the night of December 14, 2012. Id. (Compl.
¶ 37). Before that night, they were only
“minimally acquainted as . . . athletes;” he was
on the football team, and she was on the lacrosse team.
Id. (Compl. ¶¶ 34, 36). Before arriving at
the party, Cavalier had been drinking with a friend, and, by
the time Cavalier arrived at the party, she was
“heavily inebriated.” Id. (Compl. ¶
37). She continued to drink after arriving at the party.
Id. (Compl. ¶ 37). More significantly, she
alleges that her state of inebriation was evident to Doe and
others and that, indeed, she “pass[ed] out at the party
as a result of her excessive drinking.” Id.
(Compl. ¶ 37). Doe also drank at the party, but
“he maintained control of his actions.”
Id. (Compl. ¶ 38).
When
the party ended, Cavalier apparently asked Doe to walk her
back to her dorm at Ryan Hall, although Cavalier does not
remember how she got back to her room. Id. at 11
(Compl. ¶ 40). She does remember, however,
“finding Doe on top of her engaging in sexual
intercourse with her.” Id. (Compl. ¶ 40).
Cavalier does not remember Doe leaving her room. Id.
(Compl. ¶ 42). At around 1:30 a.m., a Resident Assistant
saw Cavalier in the bathroom, and Cavalier “broke down
and cried, ” telling the Resident Assistant “I
think I've just been raped.” Dkt. 1-2 at 6; Dkt. 1
at 16 (Compl. ¶ 69). At around 2:00 a.m., the Resident
Assistant “called [the University] Area Coordinator
Nicole Giglia and alerted her that [Cavalier] may have been
sexually assaulted.” Dkt. 1 at 11 (Compl. ¶ 43).
Giglia, in turn, called Lieutenant Dicks of the
University's Department of Public Safety
(“DPS”), who met Giglia at the dormitory.
Id. (Compl. ¶ 43). According to a report
prepared by Giglia, Cavalier was crying in her room and told
Giglia that she had been “raped.” Dkt. 1-11 at 2;
Dkt. 1 at 11 (Compl. ¶ 43). Cavalier also told Giglia
that “the details of the night were blurry” due
to her drinking. Dkt. 1-11 at 2; Dkt. 1 at 11 (Compl. ¶
43). Lieutenant Dicks interviewed Cavalier, and the D.C.
Metropolitan Police Department (“MPD”) and the
D.C. Fire and Emergency Medical Services Department were
contacted. Dkt. 1 at 11 (Compl. ¶¶ 44-45).
Officer
Moore of the MPD arrived at the scene and, according to
Giglia, upon hearing Cavalier's story, “rolled his
eyes” and said, “I'm not touching this,
I'm calling the Sex Crimes Unit.” Dkt. 1-11 at 2;
Dkt. 1 at 11 (Compl. ¶ 46). When the paramedics arrived
and Giglia went to retrieve Cavalier, however, Officer Moore
followed Giglia into Cavalier's room and asked to
interview her with only Lieutenant Dicks in the room. Dkt.
1-11 at 2; Dkt. 1 at 11-12 (Compl. ¶ 46). Cavalier
agreed. Although outside the room, Giglia was nonetheless
able to hear Officer Moore ask Cavalier if she
“want[ed] to see the . . . nurse because [she]
believe[d] [she was] sexually assaulted or . . . because [she
thought she] could get pregnant.” Dkt. 1-11 at 2; Dkt.
1 at 12 (Compl. ¶ 43). After the interview, Cavalier was
transported to the hospital. The report signed by the
emergency medical technicians made “findings” of
“ALCOHOL USE (SUSPECTED); SEXUAL ASSAULT, ” and
it noted that Cavalier “stated that she had been
drinking alcohol in her dorm room with an acquaintance and he
proceeded to rape her without a condom.” Dkt. 1-8 at 2;
Dkt. 1 at 12 (Compl. ¶ 47). The following morning, at
around 8:30 a.m., a blood sample was taken from Cavalier.
That sample showed that her blood alcohol level was 0.097
g/dL, which Cavalier alleges corresponds-by “retrograde
extrapolation”-to a blood alcohol level of 0.216 g/dL
at the time of the alleged assault. Dkt. 1-8 at 3; Dkt. 1 at
12 (Compl. ¶ 48). If so, that would mean that her blood
alcohol level at the relevant time was “almost three
times the legal limit” to drive a motor vehicle. Dkt. 1
at 12 (Compl. ¶ 48). Cavalier left the hospital later
that morning and returned home to California for the
Christmas break. Dkt. 1-2 at 3.
B.
Initial Response and Investigation
On
December 17, 2012, Rachel Wainer, one of University's
Assistant Deans of Students, contacted Cavalier by email to
“check in and see how [she was] doing.” Dkt. 1-1
at 3. Wainer invited Cavalier to “schedule some time to
talk” about any “questions or concerns”
that she might have. Id. Three days later, Cavalier
responded, proposing that they talk the following day,
December 21. Id. The University was closed for the
holiday break, however, and neither Wainer nor any other
University staff member responded to Cavalier's email
until January 14, 2013, when Cavalier reinitiated contact to
inquire as to her “options” regarding moving
forward with “a judiciary process.” Id.
at 2-3. Wainer met with Cavalier that same day, id.
at 2, and provided Cavalier “with information about the
support services, policies, and disciplinary procedures
available to her, ” Dkt. 1 at 14 (Compl. ¶ 54).
Shortly
thereafter, Kim Gregory, a captain from the University's
DPS, initiated a “fact-finding . . .
investigation” into Cavalier's assault report.
Id. (Compl. ¶ 55). According to the
investigative report, Lieutenant Dicks initially spoke to
Cavalier and Doe the morning that Cavalier reported the
assault. Dkt. 1-2 at 3. Dicks's report of that
conversation is, in certain respects, consistent with
Cavalier's current allegations, and, in other respects,
at odds with or goes beyond what Cavalier remembers. Dicks
confirmed that Cavalier was drinking on the night of the
alleged assault and that she did not recall how she got back
to her dorm. Id. But, although Cavalier alleges that
she has no recollection of what occurred before she found Doe
on top of her, Dkt. 1 at 11 (Compl. ¶ 40), Dicks says
that Cavalier told him that “she and [Doe] started
hugging, ” that “she consented to having sex with
a condom, ” and that she “offered [Doe] a
condom.” Dkt. 1-2 at 3. According to Dicks, Cavalier
further stated that Doe “refused to use a condom and
penetrated her[, ] . . . ejaculat[ing] inside of her, ”
which “caused her to be upset.” Id.
Dicks
also spoke to Doe the morning of the alleged assault. Doe
stated that Cavalier “got drunk” and asked him to
walk her home, and he agreed to do so. Id. According
to Doe's account, once he and Cavalier were in her room,
she “performed oral sex on him.” Id.
Cavalier then asked him if he had a condom, Doe said
“no, ” and Cavalier then retrieved a condom from
a desk drawer. Id. Doe further stated that the
condom broke while they were having intercourse, and that he
stopped at that point, placed the broken condom in the trash,
and then left the room. Id. Despite evidence that
Cavalier had consumed a great deal of alcohol, Dicks reported
that neither Cavalier nor Doe appeared intoxicated.
Id. Cavalier left for the Christmas break the same
day these initial interviews took place. Id.
The
University's investigation did not resume until January
16, 2013, two days after the students returned following the
Christmas break. Dkt. 1 at 14 (Compl. ¶ 56); Dkt. 1-2 at
3. On that day, Captain Gregory and a DPS investigator,
Charles Callis, interviewed Cavalier, who- according to the
investigative report-confirmed that she had been drinking on
the night of the alleged assault; that she did not recall how
she got back to her dorm room; and that she remembers that
she was “on her bed, unclothed from the waist down,
” with Doe “on top of her.” Dkt. 1-2 at
3-4. The report further noted that Cavalier did “not
remember exactly what was said, but [that she did] recall
[Doe] saying something about a condom.” Id. at
4. She also “remember[ed] having oral sex with
[Doe].” Id. After Doe left, according to the
report, Cavalier said she went to the bathroom, where she was
found by a fellow student, and the student contacted the
Resident Assistant. Id.
Gregory
and Callis also spoke to Doe, who repeated much of what he
had previously said. Id. He acknowledged that
Cavalier “appeared to be drunk, ” stated that she
initiated their sexual contact, and, once again, asserted
that Cavalier produced the condom, which broke while they
were engaged in sexual intercourse. Id. Doe
“said that[, ] although [Cavalier] appeared to be
drunk, she seemed to be in control and coherent, ” and
“further stated that he did not use any force[] and did
not initiate the sex acts.” Id. at 5. Although
Doe again asserted that he “did not ejaculate inside of
[Cavalier], ” he told her before leaving her room
“that he would get her the Plan B pill.”
Id. at 4. Gregory also noted in her report that MPD
Officer Moore “observed a broken condom inside of the
trash can” in the room “during the course of his
investigation.” Id. at 3. The condom was not
preserved, however.
According
to the investigative report, other witnesses reported that
Cavalier “appeared to be drunk” while at Flather
Hall and “was staggering when she left” the
party, Dkt. 1-2 at 5, that she and a friend “seemed
drunker than any of” the others present, id.
at 7, and that she “was very drunk and [was] falling
asleep” while at Flather Hall, id. Another
witness, however, reported that, when Cavalier came to her
room at some point after the alleged assault, she
“didn't seem drunk, ” but the witness
“could smell an odor of alcohol.” Id. at
6. The Resident Assistant who found Cavalier in the bathroom
told the investigators that, when she saw her, Cavalier
“broke down and cried” and said, “I think
I've just been raped.” Id. Cavalier
expressed “concern[] about . . . being pregnant,
” and told the Resident Assistant that, while she
“was having sex” with Doe, she “asked [him]
to put on a condom” and that he “would not pull
out and put one on because, he said, he had already
ejaculated.” Id.
The
investigators also contacted Detective Yvette Maupin of the
MPD Sexual Assault Unit, who interviewed Cavalier at the
hospital following the alleged assault. Id. at 8.
According to the investigative report, Maupin reported that
Cavalier told her “that the sexual encounter with [Doe]
was consensual up until the time he refused to use a
condom.” Id. at 8. When Maupin told Cavalier
that “a condom was found on the scene of the incident,
” and Cavalier was asked “where did she think the
condom came from, ” Cavalier reportedly responded:
“It must have been ours.” Id.
From
the above information, the investigators concluded that
Cavalier had been drinking on the night of the alleged
assault; that Cavalier “acknowledge[d] that she
consented to have sex with” Doe; and that “the
point of contention” is that Cavalier asserts that
“she did not consent to have sex without a
condom.” Id. The investigation, moreover,
“revealed that a condom was used during the sexual
encounter;” that “[t]he discarded condom was
observed in the trashcan in [Cavalier's] room;” and
that, when questioned by the MPD, Cavalier indicated
“that the condom [that was] found, must have been the
one used by them.” Id. Overall, the
investigative report concluded that “it is clear that a
‘rape' did not occur, ” that Cavalier
“consented to having sex with” Doe, and that
“a condom was used during the sexual encounter.”
Id. at 9. The report further states that “by
[Cavalier]'s own admission[s] to DPS, MPD[, ] and her
friends, her consent was given based upon the use[] of a
condom, ” and thus the “investigation [should] be
closed, and a copy of the investigation forwarded to the
Office of the Dean of Students for whatever action [is]
deem[ed] appropriate.” Id. The investigation
was closed “without requesting or consulting
Cavalier's toxicology report.” Dkt. 1 at 17 (Compl.
¶ 71).
Upon
receiving the investigative report, the Dean of Students,
Jonathan Sawyer, met with Cavalier and then sent her a letter
memorializing their conversation. As reflected in the letter,
Dean Sawyer “found that DPS staff conducted a thorough
and impartial investigation” and determined that,
“[a]fter careful consideration of all of the
information contained []in the investigative report, ”
“evidence [did] not exist to substantiate moving
forward with [a] student disciplinary action” against
Doe. Dkt. 1-3 at 2. Notwithstanding this decision, Dean
Sawyer did undertake to “review [Cavalier's]
academic schedule and on-campus housing arrangements on a
regular basis to try to limit any future contact between
[Cavalier] and [Doe].” Id.
C.
Disciplinary Hearing and No-Contact Order
Shortly
after Dean Sawyer determined that the investigative report
did not support initiating a disciplinary action against Doe,
Cavalier provided the University with a copy of the D.C. Fire
Emergency Medical Services (“DCFEMS”) incident
report and the toxicology report from her examination at the
hospital on December 15, 2012. Dkt. 1-4 at 2. The incident
report indicated that Cavalier exhibited “symptoms of
anxiety, ” that alcohol use was “suspected,
” and that Cavalier alleged that she was the victim of
a sexual assault. Dkt. 1-8 at 2. It further indicated that,
by 3:15 a.m., Cavalier was “alert” and her speech
was “normal.” Id. The toxicology report
from the blood sample taken at 8:28 a.m. that morning,
however, told a different story. It showed that her blood
alcohol level was 97 mg/dL (0.097 g/dL) hours after the
alleged assault. Id. at 3. Based on
“retrograde extrapolation, ” a means of
estimating an individual's blood alcohol level at an
earlier time, Cavalier alleges that the toxicology report
shows that her blood alcohol level “would have
been” 0.216 g/dL at the time of the alleged
assault-that is, almost three times the legal limit to drive
a motor vehicle. Dkt. 1 at 12 (Compl. ¶ 48).
After
reviewing these additional materials, Gregory submitted an
addendum to her initial report. Id. at 20 (Compl.
¶ 87). According to the addendum, Gregory and Callis met
with Cavalier and a staff attorney from the Network for
Victim Recovery of DC. regarding the additional information.
Dkt. 1-4 at 3. During this second interview, Cavalier
asserted that the toxicology report demonstrated that
“she was too drunk to give consent.” Id.
Gregory's report states that she “explained . . .
that many of the witnesses interviewed stated that [Cavalier]
appeared coherent and understood what was occurring”
and that neither Cavalier “nor any of the witnesses
said that she was incapacitated or unconscious during the
sexual encounter.” Id. Although it is unclear
what Gregory meant by “incapacitated” and
“coherent, ” Cavalier alleges that a number of
witnesses indicated that Cavalier was “staggering,
” “drunker than” others, “very drunk,
” and “falling asleep, ” and she herself
reported that she could not remember much of what happened
over the preceding few hours. Dkt. 1 at 15-16 (Compl.
¶¶ 64-68); Dkt. 1-2 at 5-7. Cavalier also alleges
that during this second interview, Gregory commented that,
“despite her high blood alcohol level, ‘career
alcoholics' can develop a high tolerance for alcohol,
” thereby “insinuat[ing] that . . . Cavalier
somehow had developed a natural resistance . . . to the
intoxicating effects of alcohol.” Dkt. 1 at 25 (Compl.
¶ 107); Dkt. 1-10 at 3. When Cavalier's counsel took
offense at the suggestion that Cavalier was a “career
alcoholic, ” the investigators apologized. Dkt. 1-10 at
3.
After
considering the additional information, Gregory's
addendum to her report nonetheless concluded that
“there is no evidence” showing that
Cavalier's “blood alcohol level impaired her
ability to give consent at the time of the incident.”
Dkt. 1-4 at 3. Gregory added:
On the night of the incident, [Cavalier] had contact with
several people. Each of those individuals stated that
[Cavalier] appeared coherent. She was coherent during her
encounter with DPS and MPD; the EMT personnel documented
alcohol use, however, [they] also indicated that she appeared
oriented, alert[, ] and [had] normal speech. Each of these
individuals from different agencies[] had contact with
[Cavalier] at various times that night and none of them
reported that she was incoherent, incapacitated or displayed
symptoms of being under the influence of alcohol.
Id. Although the conclusion that Cavalier did not
“display[] symptoms of being under the influence of
alcohol” is difficult to square with Gregory's
earlier investigative report-which reflected Doe's own
acknowledgement that Cavalier was drunk-Gregory recommended
that the “investigation be classified as closed by the
Department of Public Safety” and that her
recommendation “be forwarded to the Dean of
Students['] Office for whatever action [is] deemed
appropriate.” Id.
Cavalier
continued to press University administrators to schedule a
disciplinary hearing to consider Doe's actions. “On
August 21, 2013, over eight months after she reported [the
alleged] rape, Cavalier and members of her support network
met with [the University's] General Counsel Larry Morris,
Dean Sawyer, and [the University's] Title IX Coordinator
Lisa Wood to press for a hearing.” Dkt. 1 at 17-18
(Compl. ¶ 73). At that meeting, Dean Sawyer and the
General Counsel informed Cavalier that, in light of the
toxicology report, the University would hold a disciplinary
proceeding. Id. (Compl. ¶ 73). That decision
was memorialized in a letter dated August 27, 2013. Dkt. 1-5
at 2. According to the letter, the University determined
“[a]fter an extensive investigation and review of the
investigative reports and related evidence that . . .
sufficient evidence exists to warrant resolving [the] matter
through a hearing before a University Hearing Board.”
Id. The hearing, according to the letter, would
“be scheduled for late September 2013.”
Id.
The
August 27 letter also addressed the issue of
“contact” between Cavalier and Doe. It asserted
that, “[a]s outlined during your meeting with Dean
Sawyer on August 21, an order of no contact is in
place between you and [Doe]. You are to have no direct,
indirect or third[-]party contact with [Doe]. This means that
you may not speak to or contact him in person, by phone, via
email or through friends or other third parties.”
Id. The letter further explained that “failure
to comply with this directive . . . will result in further
university disciplinary action up to and including suspension
on an interim basis.” Id. The letter also
indicated that Doe “was advised on [August 21] that the
order of no contact that was put in place with him
during the investigative process is still active and he
received a similar notice of our expectations. Should [Doe]
contact you or any student attempt to discuss this matter
with you, please immediately contact [the Associate Dean of
Students] during normal business hours.” Id.
The
disciplinary hearing occurred on October 3, 2013. Dkt. 1 at
18 (Compl. ¶ 76). Cavalier received only forty-eight
hours' notice of the hearing and, as a result, her
parents (who live in California) were not able to attend.
Id. (Compl. ¶ 76). Cavalier, moreover, was not
allowed to call witnesses who were not associated with the
University, including Lindsey Silverberg of the Network for
Victim Recovery of D.C., even though Silverberg was with
Cavalier at the hospital and observed that she was
“clearly intoxicated[, ] that she slurred her words[, ]
and had trouble staying awake during [the]
conversation.” Id. at 21-22 (Compl.
¶¶ 89, 95). Cavalier was allowed, however, to
provide a written statement from Silverberg. Dkt. 1-10 at 6.
The
University Hearing Board heard testimony from eight witnesses
and received testimony and documentary evidence from
Cavalier, including, among other things, the toxicology
report from the hospital and Silverberg's written
statement. Dkt. 1-6 at 2. On October 9, 2013, Dean Sawyer
wrote to Cavalier, informing her that the Board had
concluded, “by [a] preponderance of the evidence, that
there was insufficient evidence to support a finding”
that Doe's actions had violated the University's
prohibition against sexual assault. Id. “The
Board found that no force was involved, that [Cavalier was]
not incapable of giving consent, and that [Doe] would not
reasonably have thought that [Cavalier was] incapacitated or
unable to give consent.” Id. Dean Sawyer did,
however, inform Cavalier that “[t]he Order of No
Contact between [Cavalier] and [Doe would] remain in place
indefinitely.” Id.
Cavalier
promptly appealed the Board's decision, and the appeals
committee recommended that Dean Sawyer deny her appeal. Dkt.
1-9 at 2. In a letter dated October 21, 2013, Dean Sawyer
informed Cavalier that he concurred in that recommendation.
Id. As he explained, under the University's Code
of Student Conduct, an appeal must be based on either
“a significant procedural error that changes the
findings of fact” or “[n]ew evidence that
significantly alters the finding of fact.” Id.
Concluding that the University Hearing Board “followed
established disciplinary procedural guidelines, ” both
the appeals committee and Dean Sawyer concluded that there
was no basis for an appeal. Id. Dean Sawyer,
however, once again told Cavalier that “[t]he Order of
No Contact between [her] and [Doe would] remain in place
indefinitely.” Id.
Cavalier
remained dissatisfied with the University's decision and,
in December 2013, she filed a formal complaint with the U.S.
Department of Education's Office of Civil Rights.
See Dkt. 1-10. The Office of Civil Rights
(“OCR”) completed its investigation and review of
Cavalier's complaint on October 31, 2017, concluding that
“[a]lthough the grievance procedures in place at the
time the Student filed a complaint with the University were
not fully compliant with Title IX requirements as written,
OCR found that the University responded to the ...