United States District Court, District of Columbia
N. McFADDEN, U.S.D.J.
Aniqa Raihan brings this suit against her alma mater, George
Washington University, alleging that the University violated
the law in the way its policies dealt with sexual harassment
generally, and her own sexual assault particularly. The
Supreme Court has interpreted Title IX of the Education
Amendments of 1972, 20 U.S.C. §§ 1681-1688, to
authorize damages against federally funded schools even for
student-on-student harassment, but the bar is high. Schools
are liable “only where the funding recipient acts with
deliberate indifference to known acts of harassment in its
programs or activities, ” and “only for
harassment that is so severe, pervasive, and objectively
offensive that it effectively bars the victim's access to
an educational opportunity or benefit.” Davis v.
Monroe Cty. Bd. of Educ., 526 U.S. 629, 633 (1999). Ms.
Raihan's Complaint does not clear that bar.
Complaint does not point to facts from which the Court could
plausibly infer that official school policy caused Ms.
Raihan's sexual assault. And the University's
response-even if the Court assumes that it constituted
deliberate indifference-did not deprive Ms. Raihan of
educational benefits in the way Davis contemplates,
where the only specific educational harm she claims was
seeing her assailant at the gym once and being forced to
avoid the gym in the weeks before her graduation. Ms. Raihan
also asserts that the University negligently retained the
Director of the Office of Student Rights and
Responsibilities, but this claim fails under District of
Columbia tort law. The Court will grant the University's
Motion to Dismiss.
facts come from Ms. Raihan's Complaint. At this stage,
the Court accepts a plaintiff's well-pleaded allegations
as true. Banneker Ventures, LLC v. Graham, 798 F.3d
1119, 1129 (D.C. Cir. 2015).
Raihan's allegations tread a tragically common path.
During the spring of Ms. Raihan's freshman year, in March
2014, Ms. Raihan and her friends were drinking alcohol in her
dorm room. Compl. ¶¶ 24-25. Another freshman, Mark
Favorito, arrived and observed Ms. Raihan's intoxication.
Id. ¶ 26. When Ms. Raihan's roommate asked
the group to leave, Mr. Favorito invited Ms. Raihan to his
room, where she began to feel dizzy. Id.
¶¶ 27-29. Ms. Raihan sat on Mr. Favorito's bed,
and the two watched Netflix together. Id.
¶¶ 30-31. She declined his efforts to kiss her by
turning away, starting a conversation about Mr.
Favorito's girlfriend, and pushing Mr. Favorito away.
Id. ¶¶ 32-33. Ms. Raihan began
“going in and out of consciousness before blacking out.
Before blacking out, [she] remembers [Mr.] Favorito engaging
in sexual activity with her, ” to which she did not
consent. Id. ¶ 34. In fact, Ms. Raihan
“did not give consent to any type of sexual
activity.” Id. ¶ 37.
on an unspecified date, Ms. Raihan met with the
University's Assistant Title IX Coordinator Carrie Ross,
“to explore her options for filing a report against
[Mr.] Favorito.” Id. ¶ 39. Ms. Ross
“explained Plaintiff's options, ” and
arranged a meeting between Ms. Raihan and Jennifer
Alexander-Smith, the Assistant Director of the Office of
Student Rights and Responsibilities (OSRR). Id.
“Soon” after, Ms. Ross left the University,
leaving only a single coordinator for the school's Title
IX program. Id. Ms. Raihan then met with Ms.
Alexander-Smith, who told her that “once a formal
complaint is filed, GW issues a no-contact order to the
alleged perpetrator.” Id. ¶ 40. Ms.
Raihan finally filed a formal complaint on October 3, 2016,
two and a half years after the alleged incident. Id.
Raihan's complaint was processed by OSRR, and in fact the
University “processes all reports of sexual violence
through the OSRR and not through [the] Title IX
[Office].” Id. ¶¶ 40, 43. Ms. Raihan
claims that this makes a significant difference. OSRR uses
the Code of Student Conduct as the guide for adjudicating
such reports, while the Title IX Office would use the Sexual
Harassment and Sexual Violence Policy, id., even
though the Policy explicitly states that it takes precedence
in sexual misconduct cases. Id. ¶ 14.
Complaint provides little detail about the Code of Student
Conduct, but it lists several salient features of the Policy.
The Policy provides that the University will “take
interim action . . . as appropriate” while sexual
harassment claims are being investigated, whenever
“doing so reasonably appears required to protect a
member of the university community.” Id.
¶ 10, 12. The Policy also sets a 45-day target for
completing disciplinary proceedings after a formal
investigation begins, and states that the “Vice Provost
and Dean of Student Affairs, in concurrence with the Provost
and Executive Vice President for Academic Affairs, ”
are responsible for imposing suspension and expulsion
sanctions. Id. ¶¶ 12-13.
University's failure to use the Title IX Office and the
appropriate sexual misconduct policy is one of several
structural problems that Ms. Raihan identifies. She asserts
the University “has a history” of failures in
this area, which in 2011 prompted the U.S. Department of
Education to investigate the University “for failing to
respond adequately to reports of sexual misconduct on
campus.” Id. ¶¶ 16-17. The
investigation led to an August 2011 resolution agreement,
under which the University was supposed to “adopt new
policies and procedures” for the specific context of
sexual misconduct reports. Id. ¶ 18. Ms. Raihan
also points to the University's 2014 Climate Survey,
which revealed, among other things, that 36% of
“upper-class females [had] experienced unwanted sexual
behavior;” 60% of undergraduate students did not think
the University “was effective at creating a climate
free from [such] behavior;” and 35% of the few who
reported sexual misconduct said the official response was
inadequate. Id. ¶ 21.
August 2017, the U.S. Department of Education launched
another investigation into the University's approach to
sexual misconduct, with results still pending. Id.
¶ 22. Ms. Raihan, for one, says that the adjudication
process is confusing, and that she often received misleading
or contradictory information. Id. ¶¶ 38,
65-66. For example, Ms. Raihan was told that the hearing
panel meets first to deliberate and submit an adjudication
report, and a second time to deliberate on a recommended
sanction, with Gabriel Slifka, the Director of OSRR, making
the ultimate decision-a process she claims
“contradicted the process described in [the
University's] Code of Student Conduct.”
Id. ¶¶ 65-66.
Ms. Raihan's 31-month delay in filing her formal
complaint, the University conducted fact-finding quickly.
About a month after Ms. Raihan filed her complaint, she met
with Director Slifka, and discussed the Code of Student
Conduct and how it would apply to the complaint. Id.
¶ 45. OSRR investigated the claim, then held a formal
hearing in December 2016. Id. ¶ 46. The hearing
panel found that Mr. Favorito had committed “Sexual
Misconduct - (1) Sexual Violence, ” and recommended
suspension as the appropriate sanction. Id. The Code
of Student Conduct endorses “a minimum sanction of
one-year suspension for committing sexual violence.”
Compl. ¶ 56. In February and March 2017, Ms. Raihan
repeatedly reached out to Ms. Alexander-Smith at OSRR to ask
what the hearing panel had concluded and whether any sanction
had issued. Id. ¶¶ 48-51. Each time, Ms.
Alexander-Smith either did not respond, or said that the
claim was “under review.” Id.
March 24, 2017, Director Slifka emailed Ms. Raihan an
official outcome letter and adjudication report, which
informed Ms. Raihan that Mr. Favorito would receive a
“deferred suspension.” Id. ¶¶
54, 56. He never received a no-contact order. Id.
¶ 41. “Because [Mr.] Favorito was graduating at
the end of the semester, the practical effect of a deferred
suspension was that [he] would still be allowed to complete
his coursework, graduate on time, and serve his
‘suspension' after he had already graduated.”
Id. ¶ 56. Director Slifka told Ms. Raihan that
Mr. Favorito did not receive the suspension recommended by
the hearing panel, because Director Slifka recommended a
deferred suspension, and University Dean Peter Konwerski
approved the deferral. Id. ¶ 61. Under the Code
of Student Conduct, Ms. Raihan had five days to appeal, but
she could only challenge the hearing panel's finding-not
the sanction. She did not appeal, and the University's
decision became final seven days later. Id. ¶
Raihan then “went public with a Change.org petition,
” calling for the University to expel Mr. Favorito and
remove him from his job at the student health center.
Id. ¶ 59. She also called for Director
Slifka's removal and for several policy changes to the
University's handling of sexual misconduct allegations.
Id. Along with GW Students Against Sexual Assault,
Ms. Raihan organized an “email campaign” to
persuade the University to fire Mr. Favorito from his
managerial position at the campus gym. Id. ¶
61. Although “certain restrictions were placed on [Mr.]
Favorito” at the gym, he often violated those
restrictions, harassing female employees who “had
spoken up against him, ” and causing several to leave
their jobs. Id. ¶¶ 62-63. Ms. Raihan also
“reported that [Mr.] Favorito raped, or attempted to
rape three other GW female students, ” urging the
University to “immediately suspend” Mr. Favorito
and investigate these additional claims. Id.
¶¶ 68-69. The University did not do so.
Id. ¶¶ 70-71.
the entirety of the investigation and adjudication process,
[the University] did not implement any interim safety
measures to protect Plaintiff from [Mr.] Favorito on
campus.” Id. ¶ 71. After the
University's decision, Ms. Raihan encountered Mr.
Favorito once at the school gym where he worked, and his
employment there allegedly “effectively denied [her]
access” to that facility. Id. ¶ 72. In
May 2017, both Ms. Raihan and Mr. Favorito graduated.
Id. ¶ 74.
Raihan sued in April 2018, seeking damages, costs, and
attorneys' fees. Compl. 14-15. The University soon moved
to dismiss. Mot. Dismiss, ECF No. 6.
avoid dismissal under Fed.R.Civ.P. 12(b)(6), “a
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). “A claim crosses from
conceivable to plausible when it contains factual allegations
that, if proved, would ‘allow the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.'” Banneker Ventures,
798 F.3d at 1129 (alteration omitted) (quoting
Iqbal, 556 U.S. at 678). A court must “draw
all reasonable inferences from those allegations in the
plaintiff's favor, ” but not “assume the
truth of legal conclusions.” Id. “In
determining whether a complaint fails to state a claim, [a
court] may consider only the facts alleged in the complaint,
any documents either attached to or incorporated in the
complaint and matters of which [a court] may take judicial
notice.” EEOC v. St. Francis Xavier Parochial
Sch., 117 F.3d 621, 624 (D.C. Cir. 1997).
IX provides that “No person in the United States shall,
on the basis of sex, be excluded from participation in, be
denied the benefits of, or be subjected to discrimination
under any education program or activity receiving Federal
financial assistance.” 20 U.S.C. § 1681
(containing some exceptions that do not apply here). Under
this statute, the Supreme Court has authorized private
lawsuits for money ...