MEMORANDUM OPINION
ROSEMARY M. COLLYER UNITED STATES DISTRICT JUDGE.
As a
sophomore at the George Washington University (GW), John Doe
met a young woman, Jane Roe, at a party who said that she
wanted to have sex. They did. Two years later, Jane Roe
complained to GW that she had been sexually assaulted because
she had obviously been too drunk to consent. After a hearing
before a panel convened by GW, Mr. Doe was found responsible
for sexual assault and suspended for one year. Mr. Doe
appealed and was rebuffed. He then sued GW in this Court for
gender-based discrimination in violation of Title IX and the
D.C. Human Rights Act, as well as for breach of contract and
negligence. The parties have already navigated motions for
preliminary injunction and partial summary judgment, as well
as a Court-mandated appeal before a GW appeals panel. The
appeals panel having affirmed the hearing panel's
decision, Mr. Doe has now filed an amended complaint. GW
moves to dismiss all claims. That motion will be granted in
part and denied in part.
I.
BACKGROUND
Twice
now, the Court has stated the facts of this case. See Doe
v. George Washington Univ., 321 F.Supp.3d 118 (D.D.C.
2018) (Doe II); Doe v. George Washington
Univ., 305 F.Supp.3d 126 (D.D.C. 2018) (Doe
I). However, because new evidence has come to light
since the last round of proceedings, an additional
restatement is necessary.
A.
GW and Title IX
First,
some context. In the wake of the Department of
Education's 2011 “Dear Colleague” letter, GW,
like many other colleges and universities, has been working
to address sexual assaults on campus and comply with its
obligations under Title IX, 20 U.S.C. § 1681 et
seq. Second Am. Compl. (SAC) [Dkt. 51] ¶ 44. To
describe just some of its struggles: In 2011, the Department
of Education's Office of Civil Rights (OCR) opened an
investigation into GW's handling of sexual assault claims
after a female student filed a complaint, which investigation
was only closed after GW agreed to monitoring by OCR through
the 2012-2013 and 2013-2014 school years. Id.
¶¶ 48-49. In October 2015, however, another female
student filed her own complaint, this time in federal court.
Id. ¶ 50. That case received public attention
and is ongoing. Id.
In
April 2017, yet another female student, Aniqa Raihan,
complained that GW had mishandled her case and started a
change.org petition for stricter disciplinary punishment of
students found responsible for sexual assault. Id.
¶ 52. In response, GW issued a statement wherein it
acknowledged that the “narrative emerging from the
petition and related activities suggests that GW has been
reluctant or even unwilling to hold individuals accountable
for acts of sexual violence.” Id. ¶ 53;
Message from University Administrators, GW Today
(Apr. 21, 2017)
https://gwtoday.gwu.edu/message-university-administrators. GW
insisted, however, that “the narrative is not borne out
by our record” and cited statistics from the 2015-2017
school years to prove its point: of 16 formal complaints, 10
went before a hearing panel, and in all 10 cases the accused
student was found responsible and disciplined. SAC ¶ 53.
This statement did not placate Ms. Raihan; in dramatic
fashion at graduation, she displayed a five-by-twelve-foot
sign that read “#GWProtectsRapists, ” while the
graduating class of the Women's, Gender, and Sexuality
Studies Program held a banner with “IX” on it.
Id. ¶ 55. This too received public attention.
Id.
In
August 2017, OCR opened another investigation into GW's
Title IX practices, based on a third student's complaint.
Id. ¶ 58. That investigation was completed in
July 2018. Id. However, Ms. Raihan filed her own
complaint with OCR in September 2018, and GW continues to
receive negative Title IX publicity. Id.
¶¶ 59-60.
B.
The Incident Between Mr. Doe and Ms. Roe
On the
night of September 12, 2015, Mr. Doe, a sophomore at George
Washington University and a member of the school's rugby
team, attended a party at the rugby house. Id.
¶ 65. At the time, Mr. Doe was a virgin and did not
drink alcohol for religious reasons. Id. As Mr. Doe
recalls and alleges, he overheard Ms. Roe tell a friend at
the party that she wanted to have sex. Id. ¶
67. He introduced himself to her; they talked; they kissed;
and Ms. Roe, after confirming with her roommate that their
room was not available, asked if they could have sex in Mr.
Doe's room. Id. ¶ 71. She then called an
Uber for them and a third student who needed a ride.
Id. They did not speak during the Uber ride-Mr. Doe
says that he was nervous and that Ms. Roe was “quietly
doing things on her phone” (not talking to anyone)-but
when they arrived at Mr. Doe's place they reciprocated
oral sex and had consensual intercourse. Id.
¶¶ 73, 75. After they finished, they exchanged a
few more words, then Ms. Roe left Mr. Doe's room.
Id. ¶¶ 75-76. At no point in their
interaction did Ms. Roe show signs of severe intoxication,
including slurring or stumbling. Id. ¶ 70.
Ms.
Roe, who was a freshman in September 2015, recalls
differently, [1] and on October 30, 2017, she filed a
formal complaint with GW alleging that she had been too drunk
to consent to sex and that Mr. Doe should have known it.
Id. ¶ 77. Ms. Roe told GW that she attended a
pre-game party with friends, where she took multiple shots.
Id. ¶ 137. The group then took an Uber to the
rugby house, where Ms. Roe drank more. Id.
¶¶ 94-95. Ms. Roe only vaguely remembered speaking
with Mr. Doe and did not remember calling or getting into an
Uber with him. Id. ¶ 78. Instead, she
remembered waking up a short while later to Mr. Doe having
sexual intercourse with her, that she verbalized “no,
” and that she tried to push him away but was unable
to. Id. ¶ 80. After Mr. Doe finished, Ms. Roe
rushed out of bed and into her clothes and ran down eight
flights of stairs and one block back to her dorm.
Id. ¶ 81. There she found her roommate, A.C.,
and, going into the bathroom, “explained to her the
details of what had happened.” Id.
GW
initiated an investigation through which it conducted
interviews and held a hearing before a panel composed of
another GW undergraduate student, a GW law student, and a GW
administrator whose title is “Director of Greek
Life” (collectively, the Hearing Panel). Id.
¶ 134. These proceedings were conducted pursuant to
GW's Sexual Harassment and Sexual Violence Policy (the
Policy) and its Code of Student Conduct (the Code) that were
in effect at the time.[2] Three witnesses appeared before the
Hearing Panel on behalf of Ms. Roe. Id. ¶ 130.
J.E. was the first witness and he testified both that he had
been with Ms. Roe at the pre-game party where he had seen her
take a number of shots, and that she was slurring her words
and stumbling before the group left for the rugby house.
Id. ¶ 145. The second witness, R.M., testified
that Ms. Roe had appeared drunk at the rugby house, although
he did not describe what he meant. Id. ¶ 146.
The third witness, E.E., testified that Ms. Roe had called
her when she was in the Uber with Mr. Doe, during which call
Ms. Roe sounded “extremely intoxicated . . . and . . .
barely conscious.”[3] Id. ¶ 148. Mr. Doe was
his own and only witness. He denied that Ms. Roe was
obviously drunk and reported that his potential witness,
Q.W., had spoken with Ms. Roe and observed nothing out of the
ordinary. Id. ¶ 166. However, Q.W. was studying
abroad in 2017 and did not provide a statement to the Hearing
Panel. Id.
On
January 23, 2018, GW informed Mr. Doe that the Hearing Panel
had found him responsible for sexually assaulting Ms. Roe.
Id. ¶ 167. Specifically, it found that Ms. Roe
had been intoxicated to the point of incapacitation based on:
(1) Ms. Roe's own testimony regarding her level of
intoxication and lack of memory; (2) E.E.'s testimony
that Ms. Roe sounded incoherent and barely conscious on the
phone; (3) the fact that Mr. Doe and Ms. Roe had exchanged
few words during their Uber ride together; (4) the fact that
the rugby team had encouraged women at the party to drink
heavily; and (5) Mr. Doe's predatory behavior,
i.e., approaching Ms. Roe after overhearing her tell
her friend that she wanted to have sex. Id. ¶
168; Ex. 12, Mot. for Summ. J., University Hearing Board
Adjudication Report (hereinafter Hearing Decision) [Dkt.
27-15] at 5-6.[4] The Hearing Panel also found that Mr. Doe
should have known that Ms. Roe was too incapacitated to
consent based on testimony that she had been stumbling and
slurring words before the rugby party, been drunk at the
rugby party, been slurring her words on the phone during the
Uber ride, and had otherwise spoken very little with Mr. Doe
during the Uber ride. Id. at 6. Mr. Doe was
suspended for one year, delaying conferral of his
undergraduate degree from spring 2018 until January 2019 even
though all of his course work was completed. SAC ¶¶
167, 284.
Since
the decision of the Hearing Panel, additional evidence has
become available to Mr. Doe. First, Mr. Doe subpoenaed
E.E.'s phone records in this litigation; they show that
she received no calls from Ms. Roe on the night of the
incident. Id. ¶ 106. Mr. Doe also subpoenaed
Ms. Roe's phone records; they show that the only call Ms.
Roe made during the Uber ride was a one-minute call to her
roommate A.C. Id. ¶ 107. Second, Mr. Doe
submitted a report from toxicologist Harry Milman, Ph.D.,
estimating that, in his opinion, Ms. Roe would have had a
blood alcohol content (BAC) between 0.26 and 0.37, based on
varying accounts of the number of drinks she had.
Id. ¶ 174. Dr. Milman stated that “even
at the low end of the range” it was “extremely
unlikely that she could have dressed herself, run down eight
flights of stairs, run one block to her home, and was able to
explain to her roommate that she had allegedly been
assaulted.” Harry A. Milman, Intoxication Opinion [Dkt.
28-4] at 5. Third, Q.W. submitted a statement indicating that
he had a “normal, lucid conversation” with Ms.
Roe and her friends at the rugby party in the presence of Mr.
Doe, approximately thirty minutes before the Mr. Doe and Ms.
Roe left in the Uber together. SAC ¶ 69. Fourth, Mr. Doe
obtained texts between A.C. and Ms. Roe indicating that A.C.
had no memory of calling Ms. Roe or hearing her describe her
assault on the night of the incident. Id. ¶
153. Mr. Doe appealed the Hearing Panel's decision with
this new evidence.
A GW
Appeals Panel considered Mr. Doe's appeal in September
2018.[5] After considering the new evidence
provided by Mr. Doe, the Hearing Panel's decision and the
record before it, and additional statements from Ms. Roe
responding to Mr. Doe's appeal, the Appeals Panel issued
a terse, two-page letter rejecting Mr. Doe's appeal. SAC
¶¶ 213-15; Ex. C, Mot. to Dismiss Pl.'s Am.
Compl. (Mot. to Dismiss) [Dkt. 46], Letter from Christy
Anthony, Director, Office of Student Rights and
Responsibilities, to John Doe (Sept. 18, 2018) (hereinafter
Appeals Decision) [Dkt. 46-5]. For the third time, Mr. Doe
turned to this Court, claiming breach of contract, breach of
the duty of good faith and fair dealing, disparate treatment
under Title IX, disparate impact and disparate treatment
under the D.C. Human Rights Act (DCHRA), and
negligence.[6] See generally SAC. GW moves to
dismiss. The Court heard oral arguments. The matter is now
ripe.[7]
II.
LEGAL STANDARD
Federal
Rule of Civil Procedure 12(b)(6) requires a complaint to be
sufficient “to give the defendant fair notice of what
the claim is and the grounds upon which it rests.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(internal citations omitted). Although a complaint does not
need detailed factual allegations, a plaintiff's
obligation to provide the grounds of his entitlement to
relief “requires more than labels and conclusions, and
a formulaic recitation of the elements of a cause of action
will not do.” Id. The facts alleged
“must be enough to raise a right to relief above the
speculative level.” Id. A complaint must
contain sufficient factual matter to state a claim for relief
that is “plausible on its face.” Id. at
570. When a plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged, then the claim has facial
plausibility. See Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). “The plausibility standard is not akin to a
probability requirement, but it asks for more than a sheer
possibility that a defendant has acted unlawfully.”
Id. A court must treat the complaint's factual
allegations as true, “even if doubtful in fact.”
Twombly, 550 U.S. at 555. But a court need not
accept as true legal conclusions set forth in a complaint.
See Iqbal, 556 U.S. at 678.
III.
ANALYSIS
A.
Breach of Contract
To
state a claim for breach of contract under D.C. law, a
plaintiff must allege: “(1) a valid contract between
the parties; (2) an obligation or duty arising out of the
contract; (3) a breach of that duty; and (4) damages caused
by that breach.” Tsintolas Realty Col. v.
Mendez, 984 A.2d 181 (D.C. 2009). This Court has ruled
that GW's codes and policies form a contract that Mr. Doe
can seek to enforce. See Doe I, 305 F.Supp.3d at 131
(citing Chenari v. George Washington Univ., 847 F.3d
740, 744 (D.C. Cir. 2017)). Because both parties agree that
GW ...