United States District Court, District of Columbia
CHRISTOPHER R. COOPER UNITED STATES DISTRICT JUDGE
Stafford alleges that he was the victim of racial
discrimination during his time as a walk-on tennis player at
George Washington University. He brings a bevy of federal-
and D.C.-law claims against the University, two of his former
coaches, and two administrators in the athletics department.
One of the individual Defendants, Associate Athletics
Director Nicole Early, and the University (together,
“GWU” or “the University”) have moved
to dismiss all of Stafford's claims. Stafford opposes
dismissal and also seeks leave to amend his complaint. For
the reasons that follow, the Court will grant in part and
deny in part GWU's motion to dismiss and will grant in
part and deny in part Stafford's motion for leave to file
an amended complaint.
required on a motion to dismiss, the Court draws this factual
background from the complaint, “assum[ing] the truth of
all well-pleaded factual allegations.” Sissel v.
U.S. Dep't of Health & Human Servs., 760 F.3d 1,
4 (D.C. Cir. 2014). The facts presented here are taken almost
exclusively from the proposed amended complaint, although at
times the Court draws from the original complaint-in
particular where it appears that Stafford has deleted facts
that may have been unfavorable to him. See Hourani v.
Mirtchev, 943 F.Supp.2d 159, 171 (D.D.C. 2013) (stating
that a plaintiff “may not plead facts in their amended
complaint that contradict those in their original
complaint” nor can a plaintiff “blatantly change[
] his statement of facts in order to respond to” a
motion to dismiss (internal quotation marks omitted)). The
Defendants strenuously contest many of the facts Stafford
Stafford, who is African-American, attended George Washington
University (“GWU”) from September 2014 until
December 2017. Proposed Amended Complaint (“Am.
Compl.”), ECF No. 11-6, ¶ 4. Stafford chose to
attend GWU after meeting with its then tennis coach Gregory
Munoz and members of GWU's administration. Id.
¶¶ 18, 21. He joined the GWU tennis team in
September 2014, “two weeks into the Fall season.”
Id. ¶ 25. He was one of two African Americans
and one of three players of color (the other a Persian
American) on the nine-person roster. Id.
after joining the team, Stafford alleges that he began to
observe and experience racist treatment. Id.
¶¶ 26-29. One week in, Munoz convened Stafford and
the other players of color-who together were the only
American players on the team-and threatened to punish them if
they “did not get off to a good start.”
Id. ¶ 26. Soon thereafter, Stafford says Munoz
announced that he “hate[d] Americans” and
“subjected [non-white players] to constant threats
which even included emails only directed to them and no one
else on the team.” Id. ¶ 28. Stafford
says he also witnessed early on Munoz and an assistant coach
“bull[y]” and “belittle” his
Persian-American teammate. Id. ¶ 29. This
teammate, Stafford says, “was kicked off the team the
first week of his sophomore year for unknown reasons.”
Id. ¶ 30.
“in or around September 2014, ” Stafford
maintains the same assistant coach told him and the team
“a story about a Black tennis player . . . whom [the
coach] and his teammates in college would verbally and
physically abuse because he was black, ” including by
calling him racial epithets and remarking on how dark his
skin was. Id. ¶ 31. Stafford also heard from
his teammate that the same assistant coach had once caused
the team van to crash, and Stafford claims that the coach was
such a “careless” driver that he “became
very frightened every time he got into the vehicle after
hearing the news.” Id. ¶ 32.
a time period is not specified,  Stafford says that his
“white teammates would often post racially insensitive
jokes and rhetoric on social media.” Id.
¶ 33. Stafford recounts one incident that occurred his
freshman year-so either the fall of 2014 or the spring of
2015-in which a teammate posted a “racist picture on
Facebook . . . of a black version of [the cartoon character]
Spongebob that read, “Watch Black Spongebob on
Niggalodeon.” Id. Stafford alleges that the
head coach, Munoz, “was aware of these racist postings
because he was Facebook friends with the tennis players and
told the players that he monitored social media
postings[.]” Id. Stafford claims that events
like these “eviscerated [his] desire to participate in
team activities and caused him to try to limit his
interactions with his teammates as much as possible.”
Id. ¶ 35.
other instances, later in [his] tenure, ” Stafford says
“various players would often make racist comments in
the team group chats.” Id. ¶ 34. One
teammate, whom Stafford names as a defendant in the proposed
amended complaint, purportedly “referred to a black
person as a gorilla and referred to black poetry as
‘black shitty poetry.'” Id. Other
teammates, Stafford alleges, “would often throw racial
slurs in the group chat . . . when Plaintiff was excluded
from [it].” Id.
in January 2015, Stafford confronted a teammate who he says
used a racial slur while traveling to practice, and Munoz
“chastised [Stafford]” for doing so. Id.
¶ 36. Stafford was suspended from the team a week later.
Id. ¶ 37. In the amended complaint, Stafford
says Munoz justified the suspension on the grounds that
Stafford had been “disrespectful to his teammates,
” “had anger control issues, as well as profanity
issues, ” and “was selfish” and did not
support his teammates. Id. Stafford says these
claims came out of left field, and that Munoz had only once
before expressed disapproval of his behavior-namely, when
Stafford reprimanded his teammate for using a racial slur.
Id. ¶ 38. In the original complaint, however,
Stafford said Munoz offered other, additional reasons for the
suspension-including that Stafford “did not show pride
in the University” and “disrespected the tennis
director” at the team's practice facility. Compl.
and his father thereafter requested a meeting with then
Athletics Director Patrick Nero to challenge his suspension.
Am. Compl. ¶ 41. Although Nero declined the request,
Stafford and his father did meet with Munoz and Associate
Athletics Director Early. Id. ¶ 42. At that
meeting, Stafford says Munoz “falsely denied the
existence of any racial animus and repeated the ‘anger
control' and ‘disrespecting teammates' pretexts
from the aforementioned January 18, 2015 [suspension]
email.” Id. Stafford apparently asked to be
reinstated at the meeting, but Early “did not order
reinstatement of [Stafford], leaving the issue of whether, or
not, [he] would get reinstated from the suspension entirely
to the discretion of Defendant Munoz.” Id.
¶ 43. Stafford maintains that this “grossly
improper and unjustified suspension, ” caused him to
become “depressed and withdrawn, which adversely
affected his ability to perform academically.”
Id. ¶ 49.
his suspension remained in effect, Munoz allegedly
“presented [Stafford] with an ultimatum”: become
a member of a “white fraternity” to prove his
social skills had improved or face continued suspension.
Id. ¶ 51. Despite having no interest in joining
the fraternity, Stafford went through recruitment and
received a bid to pledge the house. Id. ¶ 52.
Munoz then added two further conditions to his reinstatement.
Stafford would have to apologize to his teammates for his
“purported disrespectful conduct towards them”
and his teammates would have to agree to lifting his
suspension. Id. ¶ 53. Having to
“apologize to his teammates was extremely difficult and
humiliating for [Stafford] especially because he had not done
anything wrong to any of his teammates and coaches who had
used racial slurs and never suffered any consequences as a
result of their discriminatory actions.” Id.
“hard efforts” nevertheless paid off, and he was
reinstated after about a month-long suspension. Id.
¶ 55. According to Stafford, though, the “verbal
abuse and discriminatory treatment” picked up where it
left off. Id. Even worse, it escalated. One
representative example, Stafford alleges, was when a teammate
asked him, “Were all of your ancestors' slaves at
one point?” Id. ¶ 59. Stafford also
observed “serious racquet and verbal abuse from various
players on the team, ” id. ¶ 62, and yet,
he says, they were never “disciplined for [their]
disruptive and disrespectful behavior, ” id.
in his freshman spring season, “[i]n or around March
2015, ” Stafford says a teammate yelled at him to
“Get off the court, monkey!” Id. ¶
64. Stafford alleges that Munoz overheard the remark but did
nothing about it, and that he feared retribution by Munoz if
he spoke up. Id. Then, in April 2015, during a
training trip to Florida, Stafford says a teammate yelled
“N****R!” so loud that Stafford's teammates
in the adjoining hotel rooms could hear it. Id.
¶ 65. Again, Stafford says he was worried that Munoz
would accuse him of being an angry teammate if he attempted
to confront the racial abuse. Id. Harassment like
this, carried out by nearly all of Stafford's teammates,
continued throughout the spring 2015 season. See id.
¶¶ 66- 69. Stafford claims the abuse caused him to
“suffer[ ] from anxiety, extreme depression and severe
mental anguish” and “adversely affected his
academic performance, ” culminating in a sub-2.0 grade
point average. Id. ¶ 71.
mistreatment continued in the fall 2015 season of his
sophomore year, Stafford says. He was reprimanded by an
assistant coach for yelling in celebration after winning a
match. Id. ¶ 77. His teammates allegedly piled
on, telling Stafford they were cheering for him to lose the
match-and yet they faced no discipline from the coaching
staff. Id. ¶ 79.
intra-team squabbling came to a head at the beginning of the
spring 2016 season, when Stafford and a teammate got into a
shouting match and “approached each other in a
confrontational manner.” Id. ¶ 81. Munoz
allegedly “separated the players by grabbing [Stafford]
and physically removing him from the area, ” at which
point he told Stafford he would “kick him off the
team.” Id. ¶ 82. Asked why, Munoz
allegedly gave various reasons, including that Stafford did
not greet him in the morning, that Stafford thought he was
too good looking, and that Stafford was more interested in
his fraternity than in the team. Id. When Stafford
told Munoz that “all the racism on the team” made
him feel “extremely uncomfortable, ” Munoz
apparently responded flatly that there was no racism on the
team-and then asked Stafford “whether he liked Donald
recounts other examples of the “repeated[ ]
harass[ment]” he faced throughout his sophomore season,
spanning 2015 to 2016. He tells of a time when a white
teammate asked him “how it was possible that [Stafford]
was Black and that he had money, as if the two were
mutually incompatible.” Id. ¶ 83. He also
says that his teammates on numerous occasions made racially
stereotypical references to his genitals. Id. In
addition to these episodes, Stafford says the coaching staff
gave him poor slots in the lineup, or did not play him at
all, for no legitimate reason. See id. ¶¶
March 2016, Stafford says he again approached members of the
GWU athletics department, namely Early, to discuss “the
racist mistreatment he was subjected to and the lack of
playing time.” Id. ¶ 87. Early arranged a
meeting with Stafford and an assistant coach-by this time
Munoz was no longer the team's head coach-at which the
assistant coach said Stafford did not play much because he
hit the ball too hard, was undisciplined, and was not a team
player. Id. ¶ 88. Stafford denies all these
allegations as “pretext for his marginalization.”
Id. When Stafford's father on various occasions
tried to follow up with Early, she “mostly refused to
communicate with him.” Id. ¶ 89.
fall 2016 season, Stafford's junior year, saw a new head
coach, David Macpherson, take the reins. “Unfortunately
for [Stafford, ]” he says, “the rolling snowball
that had started early in his freshman year had by now
escalated into a veritable avalanche of racism[.]”
Id. ¶ 92. Stafford realized at the beginning of
the school year that he was not receiving team
communications, id. ¶ 93, and he soon learned
from Macpherson the reason why: he was no longer a member of
the team, id. ¶ 94. Searching for an
explanation, Stafford's father attempted to meet with the
athletics department, which refused his request for a
meeting. Id. ¶ 95.
and his father did ultimately meet with a vice provost at the
University and an athletics department representative.
Id. ¶ 96. After they “talked about all of
the overt racism, the violation of various policies and
procedures, the defamation of character and the emotional
distress and severe mental anguish” Stafford was
suffering, Stafford says the school officials “were
mortified” and “confused with why nothing was
being done and why [Stafford] was such an enormous
target.” Id. They also told Stafford that he
was still on the team and could not be removed from the team
without having signed a waiver to that effect. Id.
however, did not budge-at least not right away. He instead
set up a tryout for Stafford, through which he could earn his
way back on the team. Id. ¶ 97. Stafford,
although frustrated with having to go through this process,
apparently did well enough to earn his reinstatement.
Id. ¶ 98. Stafford's reinstatement came
over his teammates' protestations. He says that in a
private text message from Macpherson to one team member-which
was later shared in a “private teammate group
chat” that Stafford was not a part of-Macpherson
acknowledged the team's “opinion” of
Stafford, but said that Stafford “showed a lot of
potential” and had the ability to “become a
dangerous player.” Id. ¶ 101.
back on the team, Stafford says his teammates “worked
on a plan to provoke” him by “making racist
statements, in hope that [Stafford] would get into a physical
altercation or do something that would get him kicked off of
the team.” Id. ¶ 100. He alleges, for
example, that as soon as his teammates got word of his
reinstatement, they arranged a meeting through a group chat
to “coordinate their attacks and kick their racial
hatred and harassment into high-gear to try and undermine
[Stafford's] reinstatement.” Id. ¶
103. One teammate continued to say that he was perplexed by
the combination of Stafford's race and the fact that he
“had money.” Id. ¶ 104. The same
teammate would also yell the n-word when it was said in a rap
song to which the team was listening. Id. Stafford
continued to feel that “he could not do anything about
this racist treatment because of the risk that he would be
thrown off the team again.” Id.
unspecified time-apparently in the spring of 2017-Stafford
played a practice match to determine his position in the
team's lineup. Id. ¶ 106. His opponent
“started taunting [him] and trying to provoke him so he
would react aggressively and ruin his chances.”
Id. Stafford ultimately “lost the match due to
the constant bickering and taunting, ” and then yelled
at the assistant coach for not intervening. Id. When
Macpherson heard of the episode, he called Stafford, at which
point Stafford says he “told Macpherson about all of
the conspiracies, racial discrimination and defamation of
[his] character.” Id. Macpherson allegedly
told Stafford that he would “try to be more aware of
these things” and would “ultimately handle
everything.” Id. Macpherson later emailed
Stafford to inform him that he would be suspended for the
next practice. Id. Stafford says no one else was
ever punished. Id. Stafford maintains that the
suspension and the “stronger, more intense high-gear
harassment devastated [his] spirit and undermined his ability
to perform academically, ” causing his Spring 2017
grade point average to fall below 2.0. Id. ¶
“high-gear hatred and harassment” purportedly
continued in the fall of 2017, Stafford's senior year.
Id. ¶ 108. An Indian teammate told him that
another teammate had called Stafford a “cotton picking
n****r, ” and asked him to record Stafford “doing
or saying something negative” to get him kicked off the
team. Id. The Indian teammate also reported to
Stafford that he “had been sexually harassed and
assaulted by” another teammate on multiple occasions.
Id. ¶110. Stafford says the coaching staff
ignored these issues when they were brought to their
attention. Id. Stafford also alleges that around
this time his family “was verbally attacked and
harassed” by an unidentified GWU employee. Id.
GWU's alleged failure to adequately address issues like
these, Stafford insists, caused him to “suffer severe
anguish and distress, ” culminating in yet another
sub-2.0 grade point average for the fall 2017 semester.
Id. ¶ 112.
Stafford had compiled a sub-2.0 GPA in two consecutive
semesters, and three semesters overall, the University
suspended him in January 2018. Id. ¶ 113. When
Stafford met with an academic advisor to prepare an appeal of
his suspension, the advisor “was insistent that the
appeal should only contain contrite acceptance of personal
responsibility” rather than discuss the “trauma
caused by the racially hostile atmosphere” that
Stafford mentioned to her. Id. ¶ 114. The
University denied Stafford's appeal. Id. ¶
filed suit on November 26, 2018, naming as defendants the
University, Nero, Early, Munoz, Macpherson, and “John
Does 1-10, ” ostensibly various of Stafford's
teammates. He brought six claims: Count I alleges all
Defendants discriminated against him on the basis of race in
violation of the District of Columbia Human Rights Act
(“DCHRA”) D.C. Code Ann. § 2.1401.01 et
seq.; Count II alleges the same in violation of Title VI
of the Civil Rights Act of 1964, 42 U.S.C. § 2000d;
Count III alleges the same in violation of Section 1981 of
the Civil Rights Act of 1991; Count IV alleges a breach of
contract claim against only the University; Count V alleges
negligent infliction of emotional distress against all
Defendants; and Count VI alleges negligent retention against
only the University. Compl. ¶¶ 95-134.
Early moved to dismiss the complaint in its entirety on
January 22, 2019. See ECF No. 4. Stafford responded
on March 17, 2019 by filing a combined motion for leave to
amend his complaint and “response to Defendant's
motion for dismissal of complaint.” See ECF
No. 10. In his proposed amended complaint, Stafford names a
teammate as a defendant, but does not otherwise add to or
subtract any of the six claims in his original complaint.
See ECF No. 11-6 (red-lined copy of proposed amended
complaint). GWU and Early opposed Stafford's motion for
leave to amend his complaint, and the matter is now ripe for
the Court's resolution.
Rule of Civil Procedure 15(a) gives courts discretion whether
to grant leave to amend a complaint. Leave “should be
freely given in the absence of undue delay, bad faith, undue
prejudice to the opposing party, repeated failures to cure
deficiencies, or futility.” Richardson v. United
States, 193 F.3d 545, 548-49 (D.C. Cir. 1999). A
proposed amended complaint is futile if it would not survive
a motion to dismiss. When making that assessment, courts
apply the same standards as they would to review such a
motion. See In re Interbank Funding Corp. Sec.
Litig., 629 F.3d 213, 215-16 (D.C. Cir. 2010) (citations
standard applicable here is Federal Rule of Civil Procedure
12(b)(6). “To survive a motion to dismiss [under
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 is
plausible “when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Id. In evaluating a Rule 12(b)(6) motion to dismiss,
a court must “treat the complaint's factual
allegations as true . . . and must grant plaintiff the
benefit of all inferences that can be derived from the facts
alleged.” Sparrow v. United Air Lines, Inc.,
216 F.3d 1111, 1113 (D.C. Cir. 2000) (internal citation and
quotation marks omitted). A court need not, however, accept
inferences drawn by the plaintiff that are unsupported by
facts alleged in the complaint, nor must a court accept a
plaintiff's legal conclusions. See Browning v.
Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).
[complaint] filed pro se is to be liberally
construed[, ] and a pro se complaint, however
inartfully pleaded, must be held to less stringent standards
than formal pleadings drafted by lawyers.”
Abdelfattah v. U.S. Dep't of Homeland Sec., 787
F.3d 524, 533 (D.C. Cir. 2015) (internal citation and
quotation marks omitted). “Even still, a pro se
complaint ‘must plead factual matter that permits the
court to infer more than the mere possibility of
misconduct.'” Id. (quoting Jones v.
Horne, 634 F.3d 588, 596 (D.C. Cir. 2011) (internal
quotation marks omitted)). Taking these legal standards
together, then, the Court will ask whether Stafford, assuming
the truth of the allegations in his proposed amended
complaint, has stated a claim to relief that is plausible on
its face. If he has not, leave to file the amended complaint
will be denied as futile, and the case will be dismissed.
initial matter, GWU contends the whole complaint should be
dismissed due to Stafford's “shotgun” style
of pleading, referencing the complaint's practice of
incorporating by reference all preceding paragraphs and
counts of the complaint. Memorandum in Support of Defendants
George Washington University and Nicole Early's Motion to
Dismiss (“MTD”), ECF No. 4-1, at 6. This pleading
practice, GWU says, makes it impossible to tell which factual
allegations Stafford uses to support a particular legal
claim. Id Although the Court grants that the
complaint is hardly a picture of clarity, it is important to
note that Stafford is proceeding pro se, and that he
therefore warrants a bit more leeway in his attempt to comply
with federal court pleading standards than would a
represented litigant. At any rate, as will follow, other
grounds for dismissal exist, making it unnecessary to decide
the motion to dismiss on this ground.
Counts I and II: DCHRA and Title VI Claims
respect to the DCHRA and Title VI discrimination claims,
Compl. ¶¶ 95-104; Am. Compl ¶¶ 121-131,
GWU contends that Stafford has failed to state a claim under
which relief can be granted, MTD at 7; see