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Doe v. George Washington University

United States District Court, District of Columbia

April 25, 2018

JOHN DOE, Plaintiff,



         Undergraduate student John Doe was found to have committed sexual assault after the George Washington University (GW or the University) investigated a charge filed by student Jane Roe. The University conducted a hearing at which both parties were given the opportunity to present witnesses, found Mr. Doe responsible, and then denied his appeal. As a sanction, Mr. Doe was suspended from January 2018 until January 2019, which delays conferral of his degree even though he has completed all required coursework. Mr. Doe complains here that GW was biased in favor of Ms. Roe, that her claim that she was too intoxicated to consent to their sexual encounter was untrue and not credible, and that the hearing and appeal processes were arbitrary and capricious. Mr. Doe sues the University and alleges gender discrimination under Title IX of the Education Amendments of 1972 and the D.C. Human Rights Act, breach of contract and the implied covenant of good faith and fair dealing, and negligence.

         Most immediately, Mr. Doe seeks a preliminary injunction to enjoin his suspension until this matter can be litigated to its conclusion. He explains that he has only until April 27, 2018 to assure a graduate program, from which he has received a provisional offer of admission, that he will receive his diploma in May 2018, or else that school may withdraw its acceptance. See Pl.'s Mot. for Prelim. Injunction (Mot. PI) [Dkt. 6]; Suppl. Decl. of John Doe (Doe Suppl. Decl.) [Dkt. 24]. The matter is fully briefed and the Court heard oral argument.[1]Because Mr. Doe has not demonstrated that he would suffer irreparable harm in the absence of a preliminary injunction, a necessary predicate for injunctive relief, Mr. Doe's motion will be denied. To allow timely consideration of Mr. Doe's claims on the merits, the Court will convene a prompt status conference to set a schedule for expedited discovery and briefing.

         I. BACKGROUND

         The events leading to Mr. Doe's lawsuit began on the night of September 12, 2015, when Mr. Doe was a sophomore. Mr. Doe claims that he lost his virginity that night during a consensual sexual encounter in his dorm room with Ms. Roe. According to Mr. Doe, he and Ms. Roe were at a party together when Ms. Roe verbally “asked if they could have sex in his dorm room” and then called an Uber taxi to take them there, and, once in Mr. Doe's room, initiated sexual contact. Compl. [Dkt. 3] ¶¶ 6, 56-67. Over two years later, on October 30, 2017, Ms. Roe filed a charge with GW under Title IX of the Education Amendments Act of 1972 (Title IX), 20 U.S.C. § 1681 et seq., alleging that she was too intoxicated to have consented to the sexual encounter and that Mr. Doe should have known it. See Id. ¶¶ 6, 68. Ms. Doe asserted that she passed out shortly after arriving at Mr. Doe's room; that she regained consciousness “on a bed in the dorm, facedown while the respondent was penetrating” her; that she “verbalized a ‘no'” which Mr. Doe ignored; and that she left shortly thereafter, stumbling out of the room, partially falling down the stairs, and walking one block to her own residence. Id. ¶¶ 71-72.

         GW initiated an investigation through which it conducted interviews and a hearing before a panel composed of a GW undergraduate student, a GW law student, and a GW administrator whose title is “Director of Greek Life.” Id. ¶ 102. These proceedings were conducted pursuant to GW's Sexual Harassment and Sexual Violence Policy (the Policy) and its Code of Student Conduct (the Code).[2] The record is not clear as to whether either Ms. Roe or Mr. Doe was represented by counsel during the investigation and proceedings, although each had an “advisor, ” for purposes of “advice and consultation, ” present during the hearing. See Opp'n, Sealed Ex. A (Hearing Transcript) [Dkt. 18-2] at 5.

         In her charge, supplemental submissions, and hearing testimony, Ms. Roe stated that she drank a large quantity of alcohol over the course of the night; before the hearing panel, she quantified her drinking to “over ten drinks” in two-and-one-half hours, much of it before she joined the party where she encountered Mr. Doe. Mot. PI at 11. Mr. Doe contests Ms. Roe's account of her alcohol consumption that night, and disputes the hearing panel's conclusion that Mr. Doe should have known that Ms. Roe was too intoxicated to consent to sex. He emphasizes that Ms. Doe's account of what she drank, and when, became more specific in each statement between the time she filed her initial complaint and the time of her testimony at the hearing, which he argues suggests that her testimony was incorrect and at least should have raised questions about her credibility, see id.; he contends that it is almost physically impossible for Ms. Roe to have consumed as much liquor as her testimony suggested. See Compl. ¶ 7. Mr. Doe also argues that various other aspects of Ms. Roe's allegations were inconsistent. See, e.g., id. ¶ 82 (“And she again stated that she took the stairs. This time, however, she added a detail that it is impossible to believe she only just remembered: that she ‘remember[s] falling down the stairs as [she] exited.' She failed to explain how it was possible that she fell down only once in that state.”).

         In addition, Mr. Doe challenges the testimony of E.E., Ms. Roe's friend, who told the panel that she spoke with Ms. Roe during the Uber ride to the dorm and that Ms. Roe slurred her speech and sounded “extremely intoxicated, over the phone, and like barely conscious.” Id. ¶ 110; Opp'n at 29 (summarizing E.E.'s testimony before the panel); see also Mot. for Discovery Prior to Rule 26(f) Conference (Discovery Mot.) [Dkt. 9] (describing the value of E.E.'s testimony to the case against Mr. Doe). Mr. Doe has no recollection of Ms. Roe having a phone conversation during the Uber ride, and argues here that E.E. fabricated the story to assist Ms. Roe. See Discovery Mot.; Compl. ¶¶ 89-95. Mr. Doe asserts without contradiction that he did not, and does not, drink for religious reasons.

         Mr. Doe did not cross-examine E.E. at the hearing but he did contest her testimony when he spoke to the panel, including by raising his recollection that Ms. Roe had not spoken to E.E. on the phone during the Uber ride. See Def.'s Mot. in Limine [Dkt. 23] at 4; Hearing Transcript at 65. In this litigation, the Court allowed Mr. Doe to serve a third-party subpoena to obtain E.E.'s cellphone records for the relevant time frame, to determine whether a conversation took place at all. As discussed below, those records do not show that E.E. made or received a telephone call during the relevant time period. GW has filed a motion in limine to preclude introduction of E.E.'s cellphone records, arguing that because they were not before the hearing panel they are irrelevant to its processes or findings. See Def.'s Mot. in Limine.

         Based on the perceived weaknesses and inconsistences in the testimonies of Mses. Roe and E.E., and the alleged bias of the proceedings, Mr. Doe argues that it was unreasonable for the hearing panel to conclude that he was responsible for sexual assault.

         Further, Mr. Doe alleges that GW exhibited gender bias against him and in favor of Ms. Roe, which resulted in unfair treatment by the hearing panel and by the administrator who denied his appeal. He points to the panel's limiting his ability to cross-examine witnesses and to ask certain relevant questions, and he complains that the University's Title IX investigator is a woman whose professional background, and possibly current private practice, is in advocacy for victims of sexual assault, not in neutral evaluations of evidence. Mr. Doe alleges that GW has faced “relentless pressure” since 2011-from the Department of Education's Office for Civil Rights (OCR) and from its own students-to respond more vigilantly to sexual assault claims. Compl. ¶¶ 8-9. Mr. Doe also alleges that the University has publicly touted “its 100% conviction rate of respondents put through its formal sexual misconduct process, all of whom are believed to be male.” Id. ¶ 8; Mot. PI at 5. He cites a “Message from University Administrators, ” that was available contemporaneously on a GW website, which stated: “During the last two academic years (2015-16 and 2016-17 to date), 16 reported cases resulted in formal complaints, 10 went before a hearing board and are concluded. Four of these [10] cases resulted in an expulsion, five resulted in a suspension, and one resulted in a deferred suspension.” Mot. PI, Ex. 7, GW Today, Message from University Administrators (Apr. 21, 2017) [Dkt. 6-8] at 3; see also (last visited Apr. 23, 2018). From this message, Mr. Doe deduces a conviction rate of 10-for-10 of those who presented a defense to a hearing panel.

         The University informed Mr. Doe on January 23, 2018 that he had been found responsible for sexually assaulting Ms. Roe and would be suspended for one year, after which time he would receive his degree. See Compl. ¶¶ 118-23 (describing the findings). Mr. Doe filed an appeal as allowed by the Code and offered in support (1) an expert toxicology statement suggesting that Ms. Roe had to have exaggerated the amount of alcohol she had consumed on the night in question, and (2) a statement from another student who had spoken to Ms. Roe that night and found her to be “normal” and “lucid, ” and that she had kissed Mr. Doe in public at the party before they left together. Id. ¶¶ 124-27. The appeal was rejected on the grounds that Mr. Doe “[had] not met the requirements for an appeal” under the Code, id. ¶ 130-31, i.e., he had not presented relevant “‘new information . . . that was not previously presented at the hearing.'” Mot. PI at 14 (quoting GW Code ¶ 33).


         A preliminary injunction is an “extraordinary remedy never awarded as of right.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Id. at 20. Winter held that a “possibility” of irreparable harm, relied on in the lower courts in that case, was insufficient to satisfy the second prong, regardless of the strength of a plaintiff's showing on the other factors. Id. at 20-21. “Our frequently reiterated standard requires plaintiffs seeking preliminary relief to demonstrate that irreparable injury is likely in the absence of an injunction.” Id. at 22.

         III. ...

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