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Doe v. The George Washington University

United States District Court, District of Columbia

December 20, 2018

JOHN DOE, Plaintiff,



         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 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) 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]


         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 ...

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