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Raihan v. George Washington University

United States District Court, District of Columbia

August 28, 2018

ANIQA RAIHAN, Plaintiff,


          TREVOR N. McFADDEN, U.S.D.J.

         Plaintiff 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.

         The 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.[1]

         I. BACKGROUND

         These 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).

         Ms. 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.

         Later, 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. ¶ 44.

         Ms. 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.

         The 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.

         The 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.

         In 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.

         Despite 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.

         On 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. ¶ 58.

         Ms. Raihan then “went public with a 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.

         “Throughout 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.

         Ms. 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.


         To 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).

         Title 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 ...

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