Barlow v. State of Washington

Opinion

1 2

3 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 4 AT TACOMA 5 MADELEINE BARLOW, CASE NO. C20-5186 BHS 6 Plaintiff, ORDER GRANTING PLAINTIFF’S 7 v. RULE 56(D) REQUEST AND DENYING WITHOUT PREJUDICE 8 STATE OF WASHINGTON d/b/a DEFENDANT’S MOTION FOR Washington State University, SUMMARY JUDGMENT 9 Defendant. 10

11 This matter comes before the Court on Defendant Washington State University’s 12 (“the University”) motion for summary judgment. Dkt. 16. The Court has considered the 13 pleadings filed in support of and in opposition to the motion and the remainder of the file 14 and hereby denies the motion without prejudice for the reasons stated herein. Plaintiff Madeleine Barlow (“Plaintiff”) brings claims against the University 16 arising out the University’s alleged mishandling of sexual assault claims, in particular 17 with respect to Thomas Culhane (“Culhane”). 18 Culhane was a student at the University. He attended the University’s Vancouver, 19 Washington campus (“WSU Vancouver”) until spring semester 2017 and subsequently 20 applied to transfer to the University’s Pullman campus for fall semester 2017. While 21 Culhane attended WSU Vancouver, the University received two complaints of sexual 22 1 misconduct by Culhane. On or about September 29, 2016, WSU Vancouver student Dina 2 Stepanyuk (“Stepanyuk”) made a complaint about Culhane harassing her by sexual

3 comments via electronic communications. Dkt. 17-1 at 4. On September 30, 2016, Holly 4 Ashkannejhad, Assistant Director of the University’s Office for Equal Opportunity 5 (“OEO”), met with Stepanyuk to discuss the complaint. The University asserts that 6 Stepanyuk did not want a formal investigation and that, per her request, Culhane was 7 advised to cease contact with Stepanyuk. Id. at 9, 12, 15–16. Culhane agreed, and the 8 compliant was closed on October 17, 2016. Id. at 1.

9 On November 3, 2016, the University’s OEO received another sexual misconduct 10 complaint about Culhane. WSU Vancouver student Quetzali Ramirez (“Ramirez”) 11 complained to the University’s Police Department that on October 8, 2016, during a 12 student recreational trip, Culhane sat next to her in a University vehicle and put his hands 13 on her legs and in between her thighs, continuing to do so even after she told him to stop.

14 Id. at 22–24. Plaintiff asserts that it took the University ten months to complete the 15 investigation of Ramirez’s claims, but the University provides some context to the delay 16 in investigation. It asserts that Ramirez spoke with an OEO representative on November 17 4, 10, and 14, 2016 and that she indicated she did not feel an investigation was 18 “necessary.” Id. at 24, 40. The complaint file was subsequently closed on November 21,

19 2016 but was reopened on March 3, 2017 when the OEO learned from WSU Vancouver 20 Counseling that Ramirez wanted to speak with investigators. Id. Ramirez made additional 21 allegations against Culhane, and after an investigation, the OEO determined that Culhane 22 1 had violated Executive Policy 15, which is related to sexual harassment, and referred the 2 matter to the Office of Student Conduct (“OSC”) on June 21, 2017. Id. at 38.

3 On July 28, 2017, the OSC held a conduct hearing regarding the allegations made 4 by Ramirez, and Culhane pleaded “not responsible” for all charges. Dkt. 19 at 48. The 5 OSC ultimately found Culhane responsible for violations of student conduct, specifically 6 WAC 504-26-221 (sexual misconduct), WAC 504-26-220 (discrimination and 7 discriminatory harassment), WAC 504-26-227 (sexual harassment), WAC 504-26-209 8 (violation of policy), and WAC 504-26-204 (abuse of others). Id. at 49. On August 1,

9 2017, the University suspended Culhane for nine days. Id. 10 During this suspension, Plaintiff asserts that Culhane was allowed to transfer to 11 the University’s Pullman campus at his own request and that Culhane subsequently 12 moved to Pullman. The University, on the hand, contends that Culhane moved to Pullman 13 on his own accord during this period and that Culhane was still on suspension. The

14 evidence provided shows that Culhane applied to transfer to the University’s Pullman 15 campus in May 2017, id. at 31, and that his transfer application was approved that same 16 month, id. at 5. It is unclear, however, whether the University rescinded its approval for 17 Culhane’s transfer after the OSC hearing regarding Ramirez’s allegations. 18 Plaintiff also moved to Pullman in early August 2017 in preparation for her

19 freshman year at the University. Id. at 12. On August 20, 2017, Culhane raped Plaintiff 20 during a party she attended at his off-campus apartment. 21 On January 28, 2020, Plaintiff filed suit against the University in the Superior 22 Court of the State of Washington for Thurston County, bringing claims for Title IX of the 1 Education Amendments of 1972, 20 U.S.C. § 1681(a) (“Title IX”) violations, negligence, 2 and state statutory violations. Dkt. 1-2. On February 28, 2020, the University removed

3 the case to this Court. Dkt. 1. 4 On October 1, 2020, the University moved for summary judgment. Dkt. 16. On 5 October 19, 2020, Plaintiff responded and requested, in the alternative, the Court 6 continue the University’s motion pursuant to Fed. R. Civ. P. 56(d).1 Dkt. 18. On October 7 23, 2020, the University replied. Dkt. 22.

9 The University moves for summary judgment on all of Plaintiff’s claims arguing 10 that she cannot maintain her claims as a matter of law because, in part, her injury 11 occurred off-campus where the University exercised no control. 12 A. Summary Judgment Standard 13 Summary judgment is proper only if the pleadings, the discovery and disclosure

14 materials on file, and any affidavits show that there is no genuine issue as to any material 15 fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). 16 The moving party is entitled to judgment as a matter of law when the nonmoving party 17 fails to make a sufficient showing on an essential element of a claim in the case on which 18

1 The Court notes that Plaintiff’s response was twenty-seven pages, in excess of the 19 twenty-four page limit prescribed by the Local Rules. W.D. Wash. LCR 7(e)(3). The Local Rules gives the Court discretion to refuse to consider any text not included within the page limits, id. at 20 (e)(6), and the University requests that this Court do so, Dkt. 22 at 2. The Court finds that the University would not be prejudiced by the consideration of Plaintiff’s full response as the 21 response is an excess of three pages and the excess pages include the introduction, conclusion, and certificate of service. The Court will not exercise its discretion here but reminds Plaintiff to 22 file a motion for leave to file overlength briefing as appropriate. 1 the nonmoving party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323 2 (1986). There is no genuine issue of fact for trial where the record, taken as a whole,

3 could not lead a rational trier of fact to find for the nonmoving party. Matsushita Elec. 4 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (nonmoving party must 5 present specific, significant probative evidence, not simply “some metaphysical doubt”). 6 Conversely, a genuine dispute over a material fact exists if there is sufficient evidence 7 supporting the claimed factual dispute, requiring a judge or jury to resolve the differing 8 versions of the truth. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 253 (1986); T.W.

9 Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987). 10 The determination of the existence of a material fact is often a close question. The 11 Court must consider the substantive evidentiary burden that the nonmoving party must 12 meet at trial—e.g., a preponderance of the evidence in most civil cases. Anderson, 477 13 U.S. at 254; T.W. Elec. Serv., Inc., 809 F.2d at 630. The Court must resolve any factual

14 issues of controversy in favor of the nonmoving party only when the facts specifically 15 attested by that party contradict facts specifically attested by the moving party. The 16 nonmoving party may not merely state that it will discredit the moving party’s evidence 17 at trial, in the hopes that evidence can be developed at trial to support the claim. T.W. 18 Elec. Serv., Inc., 809 F.2d at 630 (relying on Anderson, 477 U.S. at 255). Conclusory,

19 nonspecific statements in affidavits are not sufficient, and missing facts will not be 20 presumed. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888–89 (1990). 21 However, if a nonmovant shows by affidavit or declaration that, for specified 22 reasons, it cannot present facts essential to justify its opposition, the court may defer 1 considering the motion, deny the motion, or allow time to obtain affidavits or 2 declarations or to take discovery. Fed. R. Civ. P. 56(d). The nonmovant must show that

3 “(1) it has set forth in affidavit form the specific facts it hopes to elicit from further 4 discovery; (2) the facts sought exist; and (3) the sought-after facts are essential to oppose 5 summary judgment.” Family Home & Fin. Ctr., Inc. v. Fed. Home Loan Mortg. Corp., 6 525 F.3d 822, 827 (9th Cir. 2008). When confronted with a Rule 56(d) motion, the court 7 may “(1) defer considering the motion or deny it; (2) allow time to obtain affidavits or 8 declarations or to take discovery; or (3) issue any other appropriate order.” Fed. R. Civ.

9 P. 56(d). 10 B. Title IX 11 Title IX provides that “[n]o person in the United States shall, on the basis of sex, 12 be excluded from participation in, be denied the benefits of, or be subjected to 13 discrimination under any education program or activity receiving Federal financial

14 assistance.” 20 U.S.C. § 1681(a). Earlier this year, the Ninth Circuit recognized that a 15 plaintiff may bring either an individual Title IX claim or a pre-assault Title IX claim. 16 Karasek v. Regents of Univ. of Calif., 956 F.3d 1093, 1104–05 (9th Cir. 2020) (en banc). 17 An individual Title IX claim arises from student-on-student or faculty-on-student sexual 18 harassment or assault and the school or university’s deliberate indifference to the

19 harassment. Id. at 1105. A pre-assault Title IX claim, on the other hand, imposes “Title 20 IX liability when a school’s official policy is one of deliberate indifference to sexual 21 harassment in any context subject to the school’s control.” Id. at 1113. The Ninth Circuit 22 held for the first time that to sustain a pre-assault Title IX claim, a plaintiff must show: 1 (1) a school maintained a policy of deliberate indifference to reports of sexual misconduct, (2) which created a heightened risk of sexual 2 harassment that was known or obvious (3) in a context subject to the school’s control, and (4) as a result, the plaintiff suffered harassment that 3 was “so severe, pervasive, and objectively offensive that it can be said to [have] deprive[d] the [plaintiff] of access to the educational opportunities or 4 benefits provided by the school.”

5 Id. at 1112 (quoting Davis Next Friend LaShonda D. v. Monroe Cnty. Bd. of Educ., 526 6 U.S. 629, 650 (1999)). 7 Here, Plaintiff brings a pre-assault claim against the University for its alleged 8 “deliberate indifference” to sexual harassment and assault, which resulted in Culhane 9 assaulting Plaintiff. See Dkt. 18 at 7. The University argues that Culhane was not under 10 its substantial control when he assaulted Plaintiff at this off-campus apartment and that 11 there is no evidence to support Plaintiff’s argument that it maintained a policy of 12 deliberate indifference, supporting summary judgment. 13 C. State Law Claims 14 Plaintiff also brings state law claims for negligence and violation of the 15 Washington Law Against Discrimination’s (“WLAD”) prohibition against discrimination 16 in places of public accommodation. To state a prima facie public accommodation WLAD 17 claim, a plaintiff must show that: 18 (1) the plaintiff is a member of a protected class, (2) the defendant’s establishment is a place of public accommodation, (3) the defendant 19 discriminated against the plaintiff when it did not treat the plaintiff in a manner comparable to the treatment it provides to persons outside that 20 class, and (4) the plaintiff’s protected status was a substantial factor that caused the discrimination. 21 22 1 Floeting v. Grp. Health Coop., 192 Wn.2d 848, 853 (2019) (internal citation omitted). 2 Here, Plaintiff argues that the University’s conduct in allowing Culhane to transfer to the

3 Pullman campus led to the discrimination, i.e. the sexual assault. Additionally, in terms of 4 negligence, Plaintiff argues that the University owed her a duty to provide for her safety 5 from sexual assault arising from: the University’s obligation to not increase the danger to 6 foreseeable victims through its own conduct; Plaintiff’s invitee status at a location where 7 the University exercises control; and the University’s special relationship with Plaintiff 8 and Culhane.

9 The University, on the other hand, argues that it is entitled to summary judgment 10 on the WLAD claim for the same reason it is entitled to summary judgment on the Title 11 IX claim—the alleged discrimination occurred at a private residence, and thus the 12 University argues the discrimination did not occur in a place of public accommodation. 13 The University also argues that there is no special duty of care between Plaintiff and the

14 University and that it did not proximately cause her damages because her damages were 15 caused exclusively by Culhane’s conduct. 16 D. Rule 56(d) 17 Plaintiff asserts that she has not yet had the opportunity to develop the record 18 through discovery on the issues at hand, which precludes the Court’s ruling on summary

19 judgment at this time. Dkt. 18 at 25. Plaintiff, through the declaration of her attorney as 20 required by Rule 56(d), asserts that she seeks facts regarding, inter alia, policies 21 regarding the University’s Title IX program, policies regarding the transfer of students 22 while there is pending disciplinary action, and prior complaints of sexual harassment and 1 assault and their dispositions—all of which go to the University’s “deliberate 2 indifference,” negligence, or control over Culhane. Dkt. 20, ¶¶ 10–12.

3 The University, on the other hand, argues that Plaintiff has failed to outline what 4 specific facts they expect to find in discovery and how those facts are essential. Dkt. 22 at 5 2. However, in reviewing the submitted affidavit, the Court finds otherwise. Plaintiff has 6 provided specific examples of discovery she seeks and explains how that evidence 7 supports her claims. Discovery has not yet closed at this time, and it appears that the 8 parties are still deeply engaged in the discovery process. See Dkt. 20, ¶ 15 (indicating that

9 the University produced documents on October 15, 2020 in the middle of the summary 10 judgment briefing schedule). Plaintiff has satisfied the requirements of Rule 56(d), and 11 the Court therefore grants her 56(d) request and denies the University’s motion for 12 summary judgment without prejudice. After the close of discovery, the University may 13 either renote its motion to allow Plaintiff sufficient time to respond or file a new motion.

15 Therefore, it is hereby ORDERED that Plaintiff’s Rule 56(d) request is 16 GRANTED and the University’s motion for summary judgment, Dkt. 16, is DENIED 17 without prejudice. 18 Dated this 30th day of November, 2020. A 19 20 BENJAMIN H. SETTLE 21 United States District Judge