UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA __________________________________ ) JOHN DOE, ) ) Plaintiff, ) ) v. ) Civil Action No. 18-553 (RMC) ) THE GEORGE WASHINGTON ) UNIVERSITY, ) ) Defendant. ) __________________________________ )
MEMORANDUM OPINION
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
1 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 2 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.
3 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.
1 According to the complaint, Ms. Roe recounts the night’s events inconsistently across several statements and testimony. Because at this stage of litigation the Court must take Mr. Doe’s allegations as true, see Section II, infra, his account of the night, not hers, is relied upon. The critical facts of Ms. Roe’s story are inconsistent with Mr. Doe’s and credibility is not judged in this decision, so the details can be skipped. 2 Both documents are appended to Mr. Doe’s complaint. See Ex.1, First Am. Compl. (FAC), Sexual Harassment and Sexual Violence [Dkt. 45-1]; Ex.2, FAC, Code of Student Conduct [Dkt. 4 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
45-2]. The Court understands that the Sexual Harassment and Sexual Violence Policy has since been updated. 3 Again, Mr. Doe’s complaint notes several inconsistencies in E.E.’s statements. Those inconsistencies are irrelevant at this time and do not warrant further detail.
5 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
4 Decisions by GW’s disciplinary panels, as well as other evidentiary documents, are incorporated by reference into the Second Amended Complaint. Cf. Abhe & Svodboda, Inc., v. Chao, 508 F.3d 1052, 1059 (D.C. Cir. 2007).
6 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
5 The appeal before GW had some complications. First, it was ordered by the Court. See Doe II, 321 F. Supp. 3d 118. Second, one trained panelist was challenged for bias and removed. SAC ¶¶ 199-201. Third, another trained panelist performed impermissible outside research then emailed the entire panel requesting information from GW on the impact of the appeals decision on this litigation. Id. ¶ 206-07. That entire panel had to be replaced. Id. ¶ 211. 6 This court has federal jurisdiction arising out of Mr. Doe’s Title IX claim, as well as diversity jurisdiction—Mr. Doe is a citizen of the State of Washington and GW is incorporated in D.C. SAC ¶¶ 1-2. Venue properly lies in this Court because a substantial part of the events underlying Mr. Doe’s claims occurred in D.C. 7 See Mot. to Dismiss.; Mem. of Law in Supp. of Def.’s Mot. to Dismiss Am. Compl. (Mem.) [Dkt. 46-1]; Opp’n to George Washington Univ.’s Mot. to Dismiss Am. Compl. (Opp’n) [Dkt. 47]; Reply in Supp. of Def.’s Mot to Dismiss Am. Compl. (Reply) [Dkt. 48].
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 has
8 now completed the formal procedures described in its codes and policies, the question is whether
those procedures were carried out fairly and in good faith.
As described by another court in this district, under D.C. law
[a]ll contracts contain an implied duty of good faith and fair dealing, which means that neither party shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract. A party breaches this duty by evading the spirit of the contract, willfully rendering imperfect performance, or interfering with performance by the other party. The test for determining whether a Defendant’s actions breached the covenant of good faith and fair dealing is a reasonableness inquiry.
Paulin v. George Washington Univ. Sch. of Med. And Health Scis., 878 F. Supp. 2d 241, 247-48
(D.D.C. 2012) (internal quotes and citations omitted) (citing Allsworth v. Howard Univ., 890
A.2d 194 (D.C. 2006)). Conduct is unfair and not in good faith if it is arbitrary and capricious. 8
Kumar v. George Washington Univ., 174 F. Supp. 3d 172, 189 (D.D.C. 2016) (citing Wright v.
Howard Univ., 60 A.3d 749, 754 (D.C. 2013)). Notably, the duty of good faith and fair dealing
“cannot contradict, modify, negate, or override the express terms of a contract.” Billups v. Lab.
Corp. of America, 233 F. Supp. 3d 20, 26 (D.D.C. 2017) (citing 17A C.J.S. Contracts § 437
(2016)). Rather, the duty of good faith and fair dealing is an interpretive lens through which
courts evaluate the parties’ reasonable expectations for the fulfillment of the terms of the
8 GW also argues “a judgment by school officials that a student has not performed adequately to meet the school’s academic standard is a determination that usually calls for judicial deference.” Alden v. Georgetown Univ., 734 A.2d 1103, 1108 (D.C. 1999). The Court agrees, although there is no issue about the University’s academic standards in this case. GW cites no persuasive case law indicating that a university is entitled to similar deference on non-academic matters. Cf. Doherty v. S. Coll. of Optometry, 862 F.2d 570, 577 (6th Cir. 1988) (“[C]ourts have adopted different standards of review when educators’ decisions are based upon disciplinary versus academic criteria—applying a more intrusive analysis of the former and a far more deferential examination of the latter.”). Notwithstanding, GW’s argument overlaps with the standard applicable to good faith and fair dealing. Cf. Chenari, 847 F.3d at 745 (considering breach of contract and implied covenant claims together because the standards “overlap”).
9 contract. In this situation, because the count for breach of the duty of good faith and fair dealing
is duplicative of the count for breach of contract, the issues will be consolidated and addressed
together; the independent claim for breach of the duty of good faith and fair dealing will be
dismissed. See WMATA v. Quik Serve Foods, Inc., Nos. 04-cv-687 and 04-cv-838 2006 WL
1147933, at *5 (D.D.C. Apr. 28, 2006).
For the purposes of GW’s motion to dismiss, the Court does not need to address
whether GW’s initial investigation of Ms. Roe’s complaint was adequate or whether the decision
of the Hearing Panel was correct, since on appeal any defects could have been addressed and
remedied. Instead, the question now is whether the decision by GW’s Appeals Panel, which
considered the new evidence and decided that a new hearing was not appropriate, was arbitrary
and capricious.
Complicating this analysis is the ambiguous standard of review applied by the
Appeals Panel. GW exhorts the Court to defer to the factual findings of the Appeals Panel, but
the Hearing Panel was the factfinder in this case, not the Appeals Panel. See Mem. at 10 n.3
(arguing that “credibility determin[ations] are left solely to the discretion of the finder of fact,
which in this case was the hearing panel”). Indeed, that the Appeals Panel was not itself a
factfinder is emphasized by the limited remedies available to it: even with new evidence, it
could not make a factual finding contrary to the Hearing Panel but could only remand to the
Hearing Panel or a new panel for further proceedings. See Code ¶ 35. While the Appeals Panel
did receive written statements from both Mr. Doe and Ms. Roe concerning the new evidence, the
Appeals Panel did not itself hear directly from any witness, new or otherwise; it could not
properly make credibility determinations as between or among witnesses. The Code does state
that “[a]ppeals must be based on new information that . . . significantly alters the finding of fact.”
10 Id. ¶ 34. But without a factfinding function, or insight into credibility, the Appeals Panel could
not be tasked to decide whether the new evidence did, in fact, significantly alter the finding of
fact (that would be the role of a hearing panel on remand), and reading the Code in this way
would seem to frustrate the entire appeals process and deny appellants meaningful review.
Rather, this standard can only be reconciled with the authority and practice of the Appeals Panel
if the Appeals Panel was actually tasked with determining whether the new evidence could
significantly alter the facts, given the totality of the cold evidence under review.
Mr. Doe describes his count for breach of contract as six different claims. Three
of the claims, related to incapacity (Count III.A), SAC ¶¶ 309-13, the preponderance standard
(Count III.B), id. ¶¶ 314-18, and the adequacy of the investigation (Count III.D), id. ¶¶ 323-26,
deal with infirmities in the investigative and hearing panel process which have been mooted by
the Appeals Panel’s superseding decision, and so will be dismissed. Mr. Doe’s retaliation claim
(Count. III.F), id. ¶¶ 333-38, argues that GW failed to punish Ms. Roe for statements she made
related to the case. This claim is sparsely pled, however, and Mr. Doe does not allege that he has
a contractual right to have GW enforce the confidentiality provisions of the Code against Ms.
Roe. It, too, will be dismissed. However, to the extent these claims overlap with Mr. Doe’s
claim that the Appeals Panel’s ultimate decision was improper (Count III.E), id. 327-32, they are
consolidated and addressed with that claim below.
Mr. Doe also claims that he had insufficient opportunity to challenge Hearing
Panel member Ms. Witkowicki, the Director of Greek Life, for bias (Count III.C). Id. ¶¶ 319-22.
The Code states that “[a]ny party may challenge a Board member on the grounds of personal bias
before the hearing commences.” Code ¶ 27.g. Mr. Doe alleges that Ms. Witkowicki has a
background which evidences biased thinking and would have objected to her presence on the
11 panel. SAC ¶ 134. Mr. Doe further alleges that he was only told the identities of the members of
the Hearing Panel when he arrived for the hearing itself and that he had no meaningful
opportunity to review their backgrounds or object. Id. ¶ 133. This Court does not infer that Ms.
Witkowicki’s background showed any bias or whether she should have been disqualified as
panelist. It is sufficient that Mr. Doe alleges that the University failed to give him a meaningful
opportunity to challenge the members of the panel, contrary to the Code. GW’s motion to
dismiss this claim will be denied. 9
Only Count III.E—Mr. Doe’s claim that the Appeals Panel improperly denied his
appeal—remains to be addressed. Giving Mr. Doe, as plaintiff, the benefit of his factual
allegations and all reasonable inferences therefrom, the Court cannot reconcile the facts of this
case with the Appeals Panel’s decision.
First, the Appeals Panel considered the phone records belonging to Ms. Roe and
her friend E.E. and determined that they “did not significantly alter the finding of fact because
the phone records supported [E.E.]’s statement that a phone call occurred in the Uber ride.”
Appeals Decision at 1. However, the phone records showed that Ms. Roe had neither called nor
received a call from E.E. SAC ¶ 219. Ms. Roe may have called her roommate A.C., but, as
alleged, A.C. had already left the party for their dorm and was not with E.E. at the time. Id.
Therefore, E.E. could not possibly have known whether any phone call occurred during the Uber
ride, much less actually had a conversation with Ms. Roe during that ride.
9 Unlike Counts III.A, B, and D, Count III.C is not mooted by the Appeals Panel’s decision because the Appeals Panel gave significant weight to the Hearing Panel’s credibility determinations.
12 Ms. Roe may have placed a call to A.C. during the Uber ride, which the Appeals
Panel believed “directly contradicted [Mr. Doe’s] testimony that no phone call occurred during
the Uber ride.” Appeals Decision at 1. But as described by Mr. Doe,
[w]hen a Verizon subscriber’s call goes unanswered for under a minute before hanging up, it is recorded on the subscriber’s bill as a one-minute outgoing call. The 12:06 a.m. call to A.C. would thus be recorded on Ms. Roe’s records in exactly the same way whether or not A.C. ever answered, and therefore whether or not Ms. Roe ever said a word.
SAC ¶ 119. At the point of a motion to dismiss, Mr. Doe is also entitled to all reasonable
inferences that may be drawn from his factual allegations. Together with Mr. Doe’s allegation
that Ms. Roe did not speak with anyone during the Uber ride, see id. ¶ 73, the Court gives him
the benefit of the reasonable inference that Ms. Roe’s call to A.C. went unanswered and that no
conversation took place.
The Hearing Panel’s decision gave significant credit to E.E.’s testimony regarding
Ms. Roe’s state of notable intoxication during the Uber ride. The totality of the evidence before
the Appeals Panel indicates that E.E. never spoke to Ms. Doe; certainly, a one-minute or
unanswered call to A.C. does not corroborate E.E.’s testimony. The Appeals Panel excused the
failure of evidence as a mere memory lapse by Ms. Roe, who, it concluded (contrary to the
Hearing Panel), may have been confused about whom she called from the Uber. However, there
is no evidence that Ms. Roe had any recollection of talking to anyone during the Uber ride, at
least not prior to the hearing when she heard E.E.’s statements asserting that E.E. had talked with
Ms. Roe. Id. ¶ 143. If there were other bases for the Appeals Panel to dismiss the potential
impact of E.E.’s erroneous testimony, it did not state them. GW’s motion to dismiss fails to
explain how the Appeals Panel could reasonably scramble the facts and ignore the errors in
E.E.’s testimony.
13 Second, the Appeals Panel reviewed Dr. Milman’s expert toxicology report.
Advised by Mr. Doe that Ms. Roe was approximately 65 inches tall and weighed somewhere
between 140-150 pounds, Dr. Milman estimated that Ms. Roe’s BAC would have been between
0.26 and 0.37. He opined that at the midpoint BAC of 0.32, she would have had total memory
loss and substantial motor impairment. The Appeals Panel discounted Dr. Milman’s opinion,
however, because he received the wrong height and weight for Ms. Roe—she is actually 70
inches tall and estimates she weighed around 170 pounds at the time of the alleged assault. Id.
¶ 226.
After finding that Dr. Milman’s calculations were based on incorrect assumptions,
the Appeals Panel was not required to calculate a new BAC based on its own lay knowledge.
That said, the Appeals Panel only decided that Dr. Milman’s assumptions were incorrect because
Ms. Roe was permitted to submit supplemental statements in response to Mr. Doe’s appeal. GW
argues that no provision of the Code was violated when it invited Ms. Roe to file supplemental
statements. The Code states, however, that the “decision to grant or deny the appeal will be
based on information supplied in the written appeal and, when necessary, the record of the
original proceedings.” Code ¶ 34; see also SAC ¶¶ 189, 192-97. Ms. Roe’s actual height and
weight were not in the record prior to the appeal or supplied in Mr. Doe’s written appeal.
Further, the pleadings do not state that GW provided Mr. Doe with a chance to respond to Ms.
Roe’s supplemental statements. 10 Without more information on how appeals are normally
conducted, this apparent irregularity is glaring.
10 Even if the Appeals Panel were not required to calculate a new BAC, Mr. Doe may have been interested in presenting a revised calculation from Dr. Milman.
14 Third, the Appeals Panel discounted the statement of Mr. Roe’s witness, Q.W.,
because the statement was submitted after the hearing and “did not outweigh other evidence
offered by the parties.” Appeals Decision at 1. By definition, some evidence before an appeals
panel will always be new and thus “late.” Further, Q.W. had a reason for submitting his
statement late: he was studying abroad when the Hearing Panel convened. In any event, it is not
the place of either this Court or the Appeals Panel to weigh the Q.W.’s credibility relative to the
other witnesses on a cold record. That factfinding is reserved for a hearings panel. GW does not
address the roles of the Hearing and Appeals Panels in this context.
Fourth and finally, the Appeals Panel addressed newly-discovered text messages
between Ms. Roe and A.C. 11 According to the texts, A.C. had no recollection of talking to Ms.
Roe either during the Uber ride or in the bathroom of the dorm after Ms. Roe returned. Without
explanation, the Appeals Panel found that this evidence “generally corroborate[d]” Ms. Roe’s
statements that she had spoken with someone on the phone during the Uber ride and that she had
spoken to A.C. about the assault when she got back to the dorm. Id. at 2. This conclusion is
divorced from the evidence and not explained by GW.
To put a finer point on the matter, the Code required two determinations: (1) Ms.
Roe did not have the capacity to consent; and (2) Mr. Doe should reasonably have known that
she was incapacitated. The Appeals Panel was presented with direct contradictions in the
evidence and appears to have strained to overlook such contradictions, leaving no trail of
reasoning.
11 Although E.E.’s phone records were available before Doe II, A.C.’s formal statement and text messages only became available to Mr. Doe after he filed a retaliation claim against Ms. Roe. SAC ¶ 127.
15 Of course, members of the Appeals Panel are neither lawyers nor judges, and their
decisions may not require much explanation. Nonetheless, to warrant deference, such a decision
must provide enough reasoning to avoid being arbitrary and capricious. The bar Mr. Doe must
clear on a motion to dismiss is low. The motion to dismiss will be denied on the breach of
contract claim to the extent it relates to the denial of his appeal.
B. Title IX
Title IX provides, in pertinent part, that “[n]o person in the United States shall, on
the basis of sex, be excluded from participation in, be denied the benefits of, or be subject to
discrimination under any education program or activity” that receives federal funding. 29 U.S.C.
§ 1681(a). Courts in other circuits have recognized an “erroneous outcome” theory of Title IX
liability, under which a student may prevail upon a showing that they were improperly
disciplined due to gender bias. See Yusuf v. Vassar Coll., 35 F.3d 709, 715 (2d Cir. 1994); Doe
v. Miami Univ., 882 F.3d 579, 589 (6th Cir. 2018) (recognizing Title IX defenses of “(1)
erroneous outcome, (2) selective enforcement, (3) deliberate indifference, and (4) archaic
assumptions”) (internal marks and citations omitted). To succeed, a plaintiff must show
“particular facts sufficient to cast some articulable doubt on the outcome of the disciplinary
proceeding” and circumstances showing “that gender bias was a motivating factor behind the
erroneous finding.” Yusuf, 35 F.3d at 715. As discussed above, Mr. Doe has cast “articulable
doubt” on the outcome of disciplinary proceeding; the remaining question is whether there was a
relationship between that outcome and gender bias.
The Second and Sixth Circuits have identified possible indicia of gender bias that
may affect the outcome of a disciplinary proceeding. In Doe v. Columbia University, the Second
Circuit found that local criticism of the school’s prior tolerance of sexual assaults against female
students, combined with an alleged motivation to demonstrate that the school was “serious about 16 protecting female students from sexual assault by male students,” was sufficient to support an
inference of discriminatory intent. 831 F.3d 46, 57 (2d Cir. 2016). By comparison, in Doe v.
Baum the Sixth Circuit found that alleged public attention and an ongoing federal investigation
that “put pressure on the university to prove that it took complaints of sexual misconduct
seriously” provided only background context for a Title IX claim. 903 F.3d 575, 586 (6th Cir.
2018). However, because that context included an additional allegation—that the university’s
hearing panel had credited all testimony by women and no testimony by men—the Sixth Circuit
found sufficient basis to support an inference of discriminatory intent. Id. at 587. Similarly, in
Doe v. Miami University, the Sixth Circuit found that public pressure created a backdrop against
which another lawyer’s affidavit and loose statistical evidence were sufficient to allege a Title IX
claim. 882 F.3d 579, 593 (6th Cir. 2018). Both the Second and Sixth Circuits agree that other
relevant allegations “might include, inter alia, statements by members of the disciplinary
tribunal, statements by pertinent university officials, or patterns of decision-making that also tend
to show the influence of gender.” Yusuf, 35 F.3d at 715; see also Miami Univ., 882 F.3d at 593
(citing Yusuf, 35 F.3d at 715).
Differing precedents in the Second and Sixth Circuits regarding Title VII pleading
standards (which have been cross-applied to Title IX) explain the different requirements for Title
IX cases. Compare Littlejohn v. City of New York, 795 F.3d 297, 310 (2d Cir. 2015) (finding
Title VII discrimination can be plead under a minimal plausible inference standard), with Keys v.
Humana, Inc., 684 F.3d 605, 608 (6th Cir. 2012) (finding Title VII discrimination claims must
be pled under Twombly and Iqbal standards). But see Doe v. Univ. of Colorado, Boulder through
Bd. of Regents of Univ. of Colorado, 255 F. Supp. 3d 1064, 1076 (D. Colo. 2017) (finding that
the Second Circuit’s interpretation does not weaken the standard required under Twombly and
17 Iqbal). The D.C. Circuit has yet to speak to the underlying issue and the parties disagree about
which standard should be applied, but the Court will not belabor the distinction because Mr. Doe
pleads enough to satisfy the Sixth Circuit’s higher pleading requirements.
Specifically, Mr. Doe alleges two OCR investigation targeting GW’s disciplinary
practices, and a third one potentially pending. See SAC ¶¶ 48-50, 59. Mr. Doe also alleges other
prongs of unwanted public attention, including two other ongoing federal lawsuits, brought by
female students against GW for its recent handling of their sexual assault claims, and public
protests. Id. ¶¶ 15-18, 50-55. Ms. Roe herself is also alleged to have publicly pressured GW for
stronger Title IX enforcement. Id. ¶ 61.
Further, in response to these protests and complaints that GW was “reluctant or
even unwilling to hold individuals accountable for acts of sexual violence,” GW issued a
statement noting that of 16 cases reported between 2015 and 2017, 10 went before a hearing
board and all 10 resulted in a finding of violation. Message from University Administrators,
supra. Without context, the Court would read little into these numbers. Cf. Univ. of Colorado,
255 F. Supp. 3d at 1078 (finding that the school was “not responsible for the gender makeup of
those are accused by other students of sexual misconduct”) (internal cites and marks omitted).
However, Mr. Doe alleges that by putting forward these numbers in response to student protests
and as proof of its commitment to combatting sexual assault, GW has “demonstrated a concrete
link between public criticism of its Title IX enforcement regime and the results of individual
Title IX cases.” SAC ¶ 54. The significance of the GW statement is contested—GW provided
some clarification in the next paragraph of its statement, Message from University
Administrators, supra (“[N]ot every case will result in a finding of violation.”)—but the
18 combination of OCR investigations, publicized demonstrations, and the GW statement are
sufficient to avoid dismissal at this point in the litigation.
GW’s motion to dismiss Mr. Doe’s claim under Title IX will be denied.
C. D.C. Human Rights Act
Under the DCHRA, it is “an unlawful discriminatory practice . . . for an
educational institution” to “deny, restrict, or to abridge or condition the use of, or access to, any
of its facilities, services, programs, or benefits of any program or activity to any person otherwise
qualified, wholly or partially, for a discriminatory reason,” including a student’s sex. D.C. Code
§ 2-1402.41(1). The DCHRA also provides that “[a]ny practice which has a discriminatory
effect . . . shall not be deemed unlawful if it can be established that such practice is not
intentionally devised or operated to contravene the prohibitions of this chapter and can be
justified by business necessity.” D.C. Code § 2-1401.03(a). Because Mr. Doe has stated a claim
for disparate treatment due to his gender under Title IX, he has also stated a claim for such
disparate treatment under the DCHRA.
That said, Mr. Doe further argues that GW’s facially neutral procedures for
investigating and adjudicating sexual assault cases have a disparate impact on men. He cites the
fact that GW hearing panels from 2015 through 2017 found responsible all accused persons—all
men, upon information and belief—brought before it. The parties agree that private-action
disparate impact claims are not permitted under Title IX, cf. Alexander v. Sandoval, 532 U.S.
275 (2001) (noting that Title VI “prohibits only intentional discrimination” and that Title IX
“was patterned after Title VI”), but they disagree as to whether such claims are permitted under
the DCHRA.
GW argues that the Court should refuse to recognize a disparate impact theory of
liability under the DCHRA. However, the D.C. Court of Appeals has already spoken directly on 19 this issue and found that D.C. “imported into the Human Rights Act, by way of the effects
clause, the concept of disparate impact discrimination developed by the Supreme Court in Griggs
v. Duke Power Co., 401 U.S. 424, 91 S. Ct. 849, 28 L. Ed. 2d 158 (1971).” Gay Rights Coal. of
Georgetown Univ. Law Ctr. v. Georgetown Univ., 536 A.2d 1, 29 (D.C. 1987) (en banc); see
also Smith v. Henderson, 54 F. Supp. 3d 58, 74 (D.D.C. 2014) (citing Gay Rights Coal., 536
A.2d at 29). Indeed, the plaintiff in Gay Rights Coalition was a private party, and GW cites no
D.C. case law supporting a different interpretation of the DCHRA.
Notwithstanding D.C. law, Mr. Doe has not actually stated a claim for disparate
impact. He pleads that from 2015 through 2017 “all of the respondents” in GW’s sexual assault
hearings were men. SAC ¶ 277. This allegation is fatal to his claim because without showing
that women go through the same disciplinary process and receive disproportionately different
outcomes, there is no showing of disparate impact; there is no comparator group. Although Mr.
Doe argues that GW is responsible for choosing which cases go to hearing and is responsible for
sending only men to hearings, this is an inevitable result of the pool of respondents; no inference
can be drawn from it.
The fact that only men may have been accused of sexual assault at GW does not
change this conclusion. GW is not responsible for selecting the parties who are the subjects of
its proceedings—that happens through complaints by alleged victims. See Code ¶ 16; cf. Univ.
of Colorado, 255 F. Supp. 3d at 1078. And GW cannot be said to have created a separate
training program to address disproportionately-male misconduct since “it is not alleged in the
pleadings . . . that more men than women engage in sexual assault,” and Mr. Doe asks the Court
not to rely on such an “unstated factual premise.” Opp’n at 38.
20 GW’s motion to dismiss the disparate impact claim under the DCHRA will be
granted. 12 It’s motion to dismiss the claim of disparate treatment based on gender under the
DCHRA will be denied.
D. Negligence
To state a claim for negligence, a plaintiff must allege “(1) that the defendant
owed a duty to the plaintiff, (2) breach of that duty, and (3) injury to the plaintiff that was
proximately caused by the breach.” Hedgepeth v. Whitman Walker Clinic, 22 A.3d 789, 793
(D.C. 2011). When a tort parallels a claimed breach of contract, “the tort must exist in its own
right independent of the contract, and any duty upon which the tort is based must flow from
considerations other than the contractual relationship.” Choharis v. State Farm Fire and Cas.
Co., 961 A.2d 1080, 1089 (D.C. 2008). Thus, a “negligence claim based solely on a breach of
the duty to fulfill one’s obligations under a contract . . . is duplicative and unsustainable.”
Himmelstein v. Comcast of the Dist. LLC, 908 F. Supp. 2d 49, 55 (D.D.C. 2012) (citing
Choharis, 961 A.2d at 1089).
GW argues that it owes no duty to Mr. Doe outside of those created by its
policies, and Mr. Doe makes only a nominal defense of his negligence allegations, citing a series
of cases outside this Court’s jurisdiction. Contrary to his attempt, Choharis represents the law of
the District of Columbia. Further, while Mr. Doe accurately states that torts that exist
independent of a contract are not duplicative, he alleges no such independent torts. Compare
SAC ¶¶ 309-42 (listing claims under breach of contract), with id. ¶¶ 346-53 (listing the same
claims under negligence). The claim of negligence will be dismissed.
12 Accordingly, the Court need not address whether a disparate impact claim under the DCHRA would conflict with GW’s obligations under Title IX.
21 IV. CONCLUSION
GW’s Motion to Dismiss, Dkt. 46, will be granted in part and denied in part. Mr.
Doe’s claims for disparate treatment under Title IX (Count I) and the DCHRA (Count II.A) and
his claim for breach of contract due to denial of his appeal (Count III.E) will be allowed to
proceed to discovery. All other claims will be dismissed. A memorializing Order accompanies
this Memorandum Opinion.
Date: December 20, 2018 ROSEMARY M. COLLYER United States District Judge