United States District Court, District of Columbia
N. MCFADDEN, U.S.D.J.
a case about a professor's poor choices and the
disciplinary actions that followed. Reginald Robinson is a
tenured law professor at Howard University. During a lecture
on agency law, he distributed a quiz to his class. One of the
quiz questions described in graphic detail types of body
waxes and the way aestheticians perform them. Mr. Robinson
called on two female students to discuss their answers to the
question. They later reported that the exchange made them
feel uncomfortable and that at least one other student had
left the classroom. After investigating, University officials
determined that the question was indeed inappropriate and
issued Mr. Robinson a confidential letter of reprimand. He
was also required to participate in sensitivity training, to
submit future quiz and exam questions to the Dean's
Office for approval, and to have a few of his future lectures
Mr. Robinson sued the University and various University
officials. He alleges breach of contract, bad faith,
violations Title IX of the Education Amendments Act of 1972
(“Title IX”), sex discrimination, intentional
infliction of emotional distress, and other claims. The Court
will dismiss some of these allegations for failure to state a
claim. Because the Defendants are entitled to judgment as a
matter of law, and because they have shown that there is no
genuine dispute as to any material fact, the Court will grant
the Defendants summary judgment on the remainder of Mr.
fall of 2015, Mr. Robinson taught a course called
“Agency, Partnerships, and Other Unincorporated
Business Associations.” Am. Compl. 13, ECF No. 19. To
test students' understanding of the concepts covered, he
often used in-class quizzes. Id. “Meaningful
participation” in these evaluations “require[d]
students to reveal their choices and to defend those choices
based on the legal principles and relevant/material
facts.” Id. at 13-14. The relevant part of the
quiz question at issue said:
Among other services, P offered Brazilian and bikini waxes -
sometimes called “Sphynx, ” bare waxing, or
Hollywood waxing. . . . T looked confused, and so A explained
that a Full Brazilian (“FB”) would render T
hairless from belly button to buttocks, and a FB required
[that] T would be naked from the waist down. A FB required A
to touch T's body and to adjust T's body so that A
could access every follicle of pubic hair. Next, A explained
a Modified Brazilians [sic] (“MB”). A MB left a
thin strip of hair at the top of T's genitalia,
viz., a “landing strip.” T opted for FB.
A again told T that A would have to touch T's genitals to
complete the waxing. T agreed, and T signed the service
contract and initialed the space for acknowledging A's
information. T got undressed in a private salon, where T also
drank hot herbal tea. At A's behest, T, w [sic] who was
waist down naked, got on the waxing table. Once on the table,
with instrumental tones wafting, T drifted into light sleep;
A completed the FB. Upon awaking, T felt physically
uncomfortable, asking A if A had touched T improperly. . . .
[W]ill the court find in favor of T?
Am. Compl. Ex. 9, ECF No. 13 at 162-163.
Robinson called on a female student who suggested that
“T would not sleep” during the sort of procedure
described. Am. Compl. Ex. 25, ECF No. 13 at 208. The
professor pressed her to answer the question, as he
“still wanted to know what choice she had made.”
Id. He also sought an answer to the hypothetical
from a second female student, before moving on to the
remainder of his lecture. Id. at 208-209.
students filed complaints against him with the University.
Am. Compl. 3. Based on their allegations, Candi Smiley, the
University's Deputy Title IX Coordinator, issued Mr.
Robinson a Notice of Complaint. Compl. Ex. 10a, ECF No. 1 at
188. It said that the University's Title IX Office would
investigate his conduct as required by federal law.
Id. It specified that Mr. Robinson was alleged to
have engaged in “acts of sexual harassment” and
“acts of gender-based discrimination” in
violation of the University's Title IX Policy.
Id. And it explained that the “charges will be
‘sustained' if it is found that the important facts
contained in an allegation are more likely true than not
and that those facts violate one or more of”
the University's Title IX Policy standards. Id.
at 189 (emphasis in original).
Notice also described Mr. Robinson's rights and the
decision-making process. He had the right to submit a written
response to the charges against him, to verbally present his
position to the Deputy Title IX Coordinator, and to retain
counsel for any interviews with the University. Id.
at 190. The letter warned Mr. Robinson that the
“decision of the Title IX Decisional Authority is the
final administrative action of the University and is not
subject to appeal.” Id. at 189-90. The
“Decisional Authority” is “the person or
persons who will review the final Report of
Investigation” prepared by the Deputy Title IX
Coordinator. Id. at 189.
completing her investigation, Ms. Smiley issued a Report of
Investigation and Findings. See Defs.' Mot. to
Dismiss or in the Alternative, Mot. for Summ. J. Ex. 1, ECF
No. 20 (“Defs.' Mot.”). The Report
concluded that “there is sufficient evidence to
determine Professor Reginald Robinson committed acts of
Sexual Harassment in violation of the Title IX Policy.”
Id. at 3. Ms. Smiley found insufficient evidence to
sustain the charge of gender discrimination. Id.
Report identified the University's Provost, Anthony
Wutoh, as the Title IX Decisional Authority. Id. at
12. Upon completing his review, Mr. Wutoh issued a Notice of
Findings. It informed Mr. Robinson that the University agreed
with the Report's conclusions, and that he would
therefore be subject to disciplinary action. Compl. Ex. 24,
ECF No. 1-1 at 47-48. A confidential letter detailing his
conduct, the actions taken, and the possible punishments for
future violations of the Title IX Policy was “placed in
his file.” Id.
Robinson appealed this decision in a letter to Mr. Wutoh. Am.
Compl. 24. In response, the Provost explained that,
“[i]n accordance with the Howard University Title IX
Policy, I serve as the . . . Title IX Decisional Authority.
As with all cases, I carefully reviewed the recommendation
from the Title IX Office before rendering a decision in this
matter. The decision reached . . . is final, and is not
subject to reconsideration or appeal.” Am. Compl. Ex.
13, ECF No. 13 at 196.
Mr. Robinson pursued several strategies to force a reversal
of the decision. He sent “his documents to a [sic]
FIRE, ” a nonprofit organization he believed could help
him “end the sex discrimination he faced.” Am.
Compl. 25. He appealed the Provost's decision to the
University's Faculty Grievance Commission. Id.
And when these efforts failed, Mr. Robinson filed a gender
discrimination claim against the University with the U.S.
Equal Employment Opportunity Commission (the
“EEOC”). See Dismissal and Notice of
Rights, Compl. Ex. 31, ECF No. 1-1 at 65. The EEOC dismissed
his complaint, as it was “unable to conclude that the
information obtained establishes violations of the
[applicable] statutes.” Id. Mr. Robinson then
filed this case. He accuses the University, Mr. Wutoh, Ms.
Smiley, and Title IX Coordinator Vanessa Love of
“knowingly fraudulent, ” “deliberately
deceptive, ” and “arbitrary and capricious”
conduct. Am. Compl. 1, 3. The operative complaint features
several claims, including:
• Breach of contract and the implied duty of good faith
and fair dealing;
• Erroneous outcome, deliberate indifference, and
unlawful retaliation in violation of Title IX;
• Sex discrimination in violation of Title VII of the
Civil Rights Act of 1964;
• Intentional and negligent infliction of emotional
• Negligence; and
• A request for declaratory and injunctive relief styled
as a claim.
Defendants maintain that the actions taken by the University
complied with its Title IX Policy and all relevant laws.
Thus, they moved to dismiss or, based on the extra-pleadings
evidence before the Court, for summary judgment. See
Defs.' Mot. at 9 n.3.
may move to dismiss a complaint when it “fail[s] to
state a claim upon which relief can be granted.”
Fed.R.Civ.P. 12(b)(6). A valid complaint must contain factual
allegations that, if true, “state a claim to relief
that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). Mere “labels
and conclusions” or “naked assertion[s] devoid of
further factual enhancement” are insufficient.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quotations omitted). Rather, “[a] claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
evaluating a motion to dismiss, the Court must construe the
complaint in the light most favorable to the plaintiff and
accept as true all reasonable factual inferences drawn from
well-pleaded allegations. In re United Mine Workers of
Am. Emp. Benefit Plans Litig., 854 F.Supp. 914, 915
(D.D.C. 1994). The Court need not, however, accept legal
conclusions or mere conclusory statements as true.
Iqbal, 556 U.S. at 678. Evaluating a motion to
dismiss is a “context-specific task that requires the
reviewing court to draw on its judicial experience and common
sense.” Id. at 679. It “may consider
only the facts alleged in the complaint, any documents either
attached to or incorporated in the complaint and matters of
which [the court] may take judicial notice.” EEOC
v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624
(D.C. Cir. 1997).
“matters outside the pleadings are presented to and not
excluded by the court, ” a motion to dismiss
“must be treated as one for summary judgment, ”
and the “parties must be given a reasonable opportunity
to present all the material that is pertinent to the
motion.” Fed.R.Civ.P. 12(d). The decision to covert a
motion to dismiss into a motion for summary judgment is
“committed to the sound discretion of the trial
court.” Flynn v. Tiede-Zoeller, Inc., 412
F.Supp.2d 46, 50 (D.D.C. 2006).
prevail on a motion for summary judgment, a movant must show
that “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a); see also Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). A factual
dispute is material if it could alter the outcome of the suit
under the substantive governing law. Anderson, 477
U.S. at 248. A dispute about a material fact is genuine
“if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Id.
“[A] party seeking summary judgment always bears the
initial responsibility of informing the district court of the
basis for its motion, and identifying those portions of the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
which it believes demonstrate the absence of a genuine issue
of material fact.” Celotex Corp v. Catrett,
477 U.S. 317, 323 (1986). Once the movant makes this showing,
the non-moving party bears the burden of setting forth
“specific facts showing that there is a genuine issue
for trial.” Anderson, 477 U.S. at 250.
addressing the substance of Mr. Robinson's claims, two
preliminary matters warrant brief discussion. First,
the parties disagree on whether to treat Mr. Robinson as a
pro se litigant. He has described himself as a lawyer, a law
professor, and “an adept legal academic” who
“knows the legal system.” Pl.'s Rule 6(b)
Mot., ECF No. 26 at 12-13. Pointing to these statements, the
Defendants argue that he is “not entitled to the leeway
sometimes granted to pro se litigants.” Defs.' Mem.
in Opp. to Pl.'s Mot. to Delay Resp., ECF No. 31 at 1
n.1. Mr. Robinson disagrees, citing a definition of
“pro se” from Black's Law Dictionary
(“one proceeding for himself and on their own behalf,
in person”) and cases ...