Prasad v. George Wash. Univ.
This text of 390 F. Supp. 3d 1 (Prasad v. George Wash. Univ.) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
I'm going to chat with [GW's Deputy Title IX Coordinator and Assistant Dean of Students] Tara [Pereira] about [plaintiff] as well and see if she thinks we need to reach out given that there may be a sexual assault history here as well. Even though she didn't file a report about that, she did make the university aware of something that "may" have happened in the past.
That same day, plaintiff emailed VT, alerting him that he was about to be served with a No Contact Order. Emails of Apr. 1, 2013, Def.'s Ex. 38, at AA0003589-92; see also Prasad Dep. at 82:16-83:18. VT replied: "I do not want u to have any hearings/ trouble." Emails of Apr. 1, 2013, Def.'s Ex. 38, at AA0003590. Plaintiff assured him there were not going to be any hearings because she was not pressing charges, but she warned she might "if anything else happens."
Plaintiff was under the impression that the school could not take action against VT until she formally identified him to GWPD, even though University personnel knew he was her attacker.
My understanding was that his name had to be formally attached to the report, so my understanding from Slifka, which was relayed to me through Ms. Esquivel when I asked this question was, he knew who it was. He put the pieces together, but could not proceed to take action unless I formally documented [VT]'s name.
Prasad Dep. at 85:15-22.
On April 12, 2013, plaintiff met with OSRR Director Gabriel Slifka to discuss the assault, and he informed her that he could take action against VT even if she had not formally identified him. Prasad Dep. at 93:16-94:18.
I recall expressing I was upset to hear that because I had been informed when Angela [Esquivel] called him that that was not the case, so I felt I had been deceived. He asked me for input on what actions I thought should be taken. He also mentioned that typically in response to assault, the sanction was suspension .... [G]iven the nature of my past relationship with [VT], he was wondering if ... that would be an appropriate response I guess.
Plaintiff did not seek to pursue suspension. She told Slifka in an email a few days later:
I wanted to write to follow up with the meeting we had on Friday. I have thought about it a lot and talked it over with friends and family, and I wanted to let you know that my basic opinion has not changed. I still think that the best thing for [VT], me, and the GW community would be to allow him to graduate, leave DC, and move on with his life....
I know it's a difficult decision. I really do believe there are other better options *13than suspension though. Thanks again for including me in this process.
Email of Apr. 16, 2013 from Pl. to Slifka, Pl.'s Ex. 50, at RFP 001338. During the course of this litigation, plaintiff testified that she feared retaliation from VT at that time, and that she had been concerned "that if he was suspended and returned, this situation could repeat itself, and [she] was also very confused and still cared for [VT]." Prasad Dep. at 95:15-19. She also testified that it would have been reasonable for Slifka to interpret her email to mean that she did not want VT to be suspended.
At that point, the OSRR did bring the school's Title IX office into the conversation. GW's Deputy Title IX Coordinator Tara Pereira testified that plaintiff met with her at some point after the assault at the request of OSRR Assistant Director Lindsay McConnell. Pereira Dep. at 111:4-112:18. Pereira did not formally refer plaintiff to specific Title IX resources at that time "because [plaintiff's] concerns that she shared with me were not Title IX concerns."
By this time, Suzanne Combs had succeeded Erin Harpine as GWPD's Coordinator of Victims' Services. Dep. of Suzanne Combs, Pl.'s Ex. 25 & Def.'s Ex. 32 ("Combs Dep."), at 14:10-17:8. Combs testified that Pereira reported that she was having difficulty getting in contact with plaintiff, who was "wishy-washy about what she wanted to do," and that Pereira asked her to help.
During this period when University personnel were meeting with plaintiff about the March 30 attack and determining how to proceed, plaintiff and VT continued to communicate and meet in person. They met at plaintiff's request on April 6, 2013, when she told VT she wanted to talk about "the events of the past week," Prasad Dep. at 90:14-91:6; Email of Apr. 6, 2013 from Pl. to VT, Def.'s Ex. 39, at AA0003347, and they met again on April 12. See Pl.'s SODF ¶ 36; see also Emails of Apr. 12, 2013 between VT and plaintiff, Def.'s Ex.
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I'm going to chat with [GW's Deputy Title IX Coordinator and Assistant Dean of Students] Tara [Pereira] about [plaintiff] as well and see if she thinks we need to reach out given that there may be a sexual assault history here as well. Even though she didn't file a report about that, she did make the university aware of something that "may" have happened in the past.
That same day, plaintiff emailed VT, alerting him that he was about to be served with a No Contact Order. Emails of Apr. 1, 2013, Def.'s Ex. 38, at AA0003589-92; see also Prasad Dep. at 82:16-83:18. VT replied: "I do not want u to have any hearings/ trouble." Emails of Apr. 1, 2013, Def.'s Ex. 38, at AA0003590. Plaintiff assured him there were not going to be any hearings because she was not pressing charges, but she warned she might "if anything else happens."
Plaintiff was under the impression that the school could not take action against VT until she formally identified him to GWPD, even though University personnel knew he was her attacker.
My understanding was that his name had to be formally attached to the report, so my understanding from Slifka, which was relayed to me through Ms. Esquivel when I asked this question was, he knew who it was. He put the pieces together, but could not proceed to take action unless I formally documented [VT]'s name.
Prasad Dep. at 85:15-22.
On April 12, 2013, plaintiff met with OSRR Director Gabriel Slifka to discuss the assault, and he informed her that he could take action against VT even if she had not formally identified him. Prasad Dep. at 93:16-94:18.
I recall expressing I was upset to hear that because I had been informed when Angela [Esquivel] called him that that was not the case, so I felt I had been deceived. He asked me for input on what actions I thought should be taken. He also mentioned that typically in response to assault, the sanction was suspension .... [G]iven the nature of my past relationship with [VT], he was wondering if ... that would be an appropriate response I guess.
Plaintiff did not seek to pursue suspension. She told Slifka in an email a few days later:
I wanted to write to follow up with the meeting we had on Friday. I have thought about it a lot and talked it over with friends and family, and I wanted to let you know that my basic opinion has not changed. I still think that the best thing for [VT], me, and the GW community would be to allow him to graduate, leave DC, and move on with his life....
I know it's a difficult decision. I really do believe there are other better options *13than suspension though. Thanks again for including me in this process.
Email of Apr. 16, 2013 from Pl. to Slifka, Pl.'s Ex. 50, at RFP 001338. During the course of this litigation, plaintiff testified that she feared retaliation from VT at that time, and that she had been concerned "that if he was suspended and returned, this situation could repeat itself, and [she] was also very confused and still cared for [VT]." Prasad Dep. at 95:15-19. She also testified that it would have been reasonable for Slifka to interpret her email to mean that she did not want VT to be suspended.
At that point, the OSRR did bring the school's Title IX office into the conversation. GW's Deputy Title IX Coordinator Tara Pereira testified that plaintiff met with her at some point after the assault at the request of OSRR Assistant Director Lindsay McConnell. Pereira Dep. at 111:4-112:18. Pereira did not formally refer plaintiff to specific Title IX resources at that time "because [plaintiff's] concerns that she shared with me were not Title IX concerns."
By this time, Suzanne Combs had succeeded Erin Harpine as GWPD's Coordinator of Victims' Services. Dep. of Suzanne Combs, Pl.'s Ex. 25 & Def.'s Ex. 32 ("Combs Dep."), at 14:10-17:8. Combs testified that Pereira reported that she was having difficulty getting in contact with plaintiff, who was "wishy-washy about what she wanted to do," and that Pereira asked her to help.
During this period when University personnel were meeting with plaintiff about the March 30 attack and determining how to proceed, plaintiff and VT continued to communicate and meet in person. They met at plaintiff's request on April 6, 2013, when she told VT she wanted to talk about "the events of the past week," Prasad Dep. at 90:14-91:6; Email of Apr. 6, 2013 from Pl. to VT, Def.'s Ex. 39, at AA0003347, and they met again on April 12. See Pl.'s SODF ¶ 36; see also Emails of Apr. 12, 2013 between VT and plaintiff, Def.'s Ex. 40, at AA0003222-23. The day after plaintiff told Slifka that it would be better to let VT graduate, she emailed VT to say she might meet him the next week for dinner, and in a separate email, she suggested they meet in the library. Emails of Apr. 17, 2013 from Pl. to VT, Def.'s Ex. 42, at AA0003163. [redacted]
On April 24, 2013, plaintiff acknowledged to Slifka that she had violated the No Contact Order, and stated that she wanted to formally identify VT as her assailant.
I wanted to give you an honest update in regards to the contact between [VT] and I, because I now feel harassed. A week after the incident in the park, before I met with you, I violated the no-contact order and asked [VT] to meet with me. I saw him throughout the following week. For a long time, he has been basically my entire support system, which makes it very difficult to stay away from him, even when he is the one hurting me. However, with the help of UCC and after my meeting with you, I was able to break it off fully again by the end of that *14weekend.... I have made it clear to him through email that I do not want to see or speak to him ever again.... I have also decided at this point to make the UPD report no longer anonymous.
Email of Apr. 24, 2013 from Pl. to Slifka, Pl.'s Ex. 26, at AA0000765. The email to Slifka included screen shots of sexually explicit messages VT had recently sent to her.
On April 24, plaintiff also reported that she and her roommate believed VT had appeared outside the window of her dorm room in the middle of the night. Email of Apr. 24, 2013 from Pl. to Slifka, Pl.'s Ex. 26, at AA0000764. Slifka forwarded plaintiff's email to GWPD Captain Michael Glaubach, Email of Apr. 24, 2013 from Slifka to Glaubach, Pl.'s Ex. 56, at AA0010471, and told VT to stop contacting plaintiff in violation of the NCO. Email of Apr. 24, 2013 from Slifka to VT, Pl.'s Ex. 26, at AA0000763; OSRR Admin. Action /Additional Correspondence, Pl.'s Ex. 15, at AA0001186 (reflecting that Slifka called and spoke with VT on April 24, 2013 and "explained that he must cease his communication with Ms. Prasad immediately").
V. Plaintiff Identified VT and GW Suspended Him
The following day, on April 25, 2013, plaintiff identified VT to GWPD as her assailant, but she added that she did not want to notify District of Columbia police or press charges. GWPD Suppl. Case Report of Apr. 25, 2013, Def.'s Ex. 26, at AA0001162. On April 30, 2013, OSRR Assistant Director McConnell emailed plaintiff about submitting a formal statement to OSRR. See Email of Apr. 30, 2013 from McConnell to Pl., Pl.'s Ex. 57, at AA0009506. Plaintiff responded on May 2, describing VT's knocking on her dorm room window the night of April 23. Email of May 2, 2013 from Pl. to McConnell, Pl.'s Ex. 26, at AA0000758-61. She also attached messages that VT had sent to her,
According to Slifka, plaintiff's formal identification of VT to GWPD on April 25 initiated the disciplinary process against VT. Dep. of Gabriel Slifka, Pl.'s Ex. 13 & Def.'s Ex. 29 ("Slifka Dep.") at 78:22-79:13. On May 10, 2013, OSRR formally charged him with assault, physical abuse, non-compliance with reasonable directions of University officials, and disorderly conduct. Letter of May 10, 2013 from OSRR to VT, Pl.'s Ex. 42, at AA0001154-55. Slifka notified plaintiff that the University would hold a disciplinary hearing and directed her to appear at the hearing as a witness. Letter of May 10, 2013 from OSRR to Pl., Pl.'s Ex. 42, at AA0001156.
The next day, plaintiff asked Angela Esquivel if she would attend the hearing with her, and Esquivel agreed. Emails of May 11, 2013 between Pl. and Esquivel, Def.'s Ex. 47, at AA0013750-51. The hearing, *15which OSRR Assistant Director McConnell described as "very high level and involv[ing] domestic violence," was set for Tuesday, May 21, 2013. Email of May 15, 2013 from McConnell to G. Rheault, Pl.'s Ex. 67, at AA0010257.9 But the hearing was set for the day after plaintiff had planned to leave town, so she informed school officials that she would not appear in person.
I wanted to let you know that I will be doing the testimony via phone. They are scheduling it for next week and I'll be gone anyway. Thanks for offering though and have a great summer!!!
Email of May 15, 2013 from Pl. to Esquivel, Def.'s Ex. 47, at AA0013750.
While the University was preparing for the disciplinary hearing, plaintiff and VT resumed communications. The record shows that on May 12, 2013, VT asked plaintiff to go on a date. Emails of May 12, 2013 between Pl. and VT, Def.'s Ex. 48, at AA0002164-66. She responded, "I would never go on a date with you ... I would go see the great gatsby with you. I cannot be alone with you."
As the school year came to a close, plaintiff sent an email to Slifka that described ways in which the process of handling complaints could be improved in the future10 and also thanked him:
I am glad GW has taken the situation between [VT] and me seriously, listened to my complaints, and included my input in the decision-making process.... Overall, I do feel like I am leaving this university with the situation having been addressed, so thank you.
Email of May 13, 2013 from Pl. to Slifka, Def.'s Ex. 49, at AA0009306-07.
On May 14, 2013, GWPD Victims' Services Coordinator Combs sent plaintiff an email with links to various resources and information about how plaintiff could obtain a court-issued Temporary Protection *16Order to keep VT away from her in the future. Email of May 14, 2013 from Combs to Pl., Pl.'s Ex. 79, at ID 000137; Combs Dep. at 66:5-17. Plaintiff thanked Combs for the information but did not take steps to obtain an order at that time. See Email of May 14, 2013 from Pl. to Combs, Pl.'s Ex. 79, at ID 000137.
The OSRR University Hearing Board held the disciplinary hearing on May 21, 2013. Def.'s SOF ¶ 45; Pl.'s SOF ¶ 106. Plaintiff participated by telephone, and she later testified in her deposition that although she was not physically present, there was nothing she wanted to say at the hearing that she was prevented from saying. Prasad Dep. at 134:17-135:9.
Relying on her statements and on OSRR and GWPD reports, the disciplinary board found that VT had assaulted and physically abused plaintiff, he had violated the April 1, 2013 No Contact Order, and he had harassed and threatened plaintiff, and that therefore he was in violation of the prohibition against disorderly conduct. OSRR Univ. Hr'g Board-Level Disciplinary Conference Adjudication Report of May 21, 2013, Def.'s Ex. 51, at AA0001145-48. The Board recommended that the University expel VT.
Rather than expel him, the University suspended VT on June 4, 2013 effective May 21, 2013 through the summer 2015 semester. Letter of Jun. 4, 2013, Def.'s Ex. 52, at AA0001149-50. He would receive credit for his course work for the spring, but he was barred from all University property effective June 11, 2013, and he was told that the April 1, 2013 No Contact Order remained in effect.
After his suspension, VT began harassing GW personnel. See Email of Jun. 10, 2013 from J. Jones to Slifka, Pl.'s Ex. 70, at AA0014089 (describing "a VERY disturbing phone call" from VT in which he conveyed his anger over the hearing's outcome: "You don't want me to explode. You are the reason why i'm going to explode."); see also OSRR Admin. Action /Additional Correspondence, Pl.'s Ex. 15, at AA0001183 (noting that on June 10, 2013 VT made "concerning statements" to Jay Jones, Special Assistant to the Dean in the Division of Student Affairs, and that Jones filed a report with GWPD regarding the call). On June 10, 2013, GWPD Captain Glaubach emailed GW officials regarding VT's conduct and wanting to avoid a potential "Tarasoff situation."11 Email of Jun. 10, 2013 from Glaubach, Pl.'s Ex. 70, at AA0014089.
On June 16, 2013, plaintiff texted VT - as opposed to the school - to inquire about the outcome of the disciplinary hearing. Text Messages of Jun. 16, 2013, Def.'s Ex. 20, at RFP 000838. She then emailed Esquivel, calling the result "a victory for justice." Email of Jun. 17, 2013 from Pl. to Esquivel, Def.'s Ex. 53, at AA0013752.
VT appealed the decision, and the University denied the appeal on June 24, 2013. Letter of Jun. 24, 2013 from Slifka to VT, Pl.'s Ex. 73, at AA0001133; Def.'s SOF ¶ 50. Apparently Slifka had been awaiting the outcome of the appeal to notify plaintiff of the decision; he testified that he did not tell her the result before then because the appeal was still pending, see Slifka Dep. at 173:15-176:5, and according to OSRR notes, he spoke to plaintiff on June 26. OSRR Admin. Action /Additional Correspondence, Entry of Jun. 26, 2013, Pl.'s Ex. 15, at AA0001179. Slifka told plaintiff *17about VT's suspension and that the No Contact Order would remain in place. Prasad Dep. at 144:7-12.
Following the denial of the appeal, VT's harassment of GW officials continued. See GWPD Incident Report of Jul. 1, 2013, Pl.'s Ex. 75, at AA0001527-30 (reporting harassing emails and false food delivery sent to school personnel); GWPD Incident Report, Aug. 28, 2013, Pl.'s Ex. 26, at AA0000642-43 (reporting threats from VT to ruin Slifka's "reputation via electronic measures" and false subscriptions to pornography and other websites); see also [redacted]
On July 5, 2013, GWPD Captain Glaubach emailed GW Senior Associate Dean of Students Mark Levine, questioning efforts to get VT through to graduation:
i think now is when [we] really want to question the "let's help him to graduate approach" and look at the "let's separate him permanently because our employees should not have to take this kind of abuse approach.
Email of Jul. 5, 2013 from Glaubach to Levine, Pl.'s Ex. 76, at AA0012632. Levine replied that they should "regroup ... and talk options. Us offering to allow him to take his last two classes elsewhere might be the way to go, but it doesn't have to be put on the table to him quickly. He still needs consequences for his behavior." Email of Jul. 8, 2013 from Levine to Glaubach, Pl.'s Ex. 76, at AA0012632.
After VT's suspension, plaintiff did not see VT again until 2015, Prasad Dep. at 148:5-15; 153:6-155:1, though VT continued to communicate with her. See Facebook Messages from Jun. 2, 2014 through April 17, 2014, Def.'s Ex. 4, at RFP 000059-65; Text Messages from Jun. 6, 2013 through Jul. 20, 2013, Def.'s Ex. 20, at RFP 000837-46. In July 2013, she reported violations of the NCO to Suzanne Combs, see Email of Jul. 21, 2013 from Pl. to Combs, Pl.'s Ex. 79, at ID 000138, who reported them to GWPD. GWPD Incident Report of Jul. 22, 2013, Pl.'s Ex. 8, at AA0001512-25 (stating that plaintiff had told Combs she was "fearful of [VT] returning to campus in the fall" when plaintiff would be back on campus for her graduate studies).12 Combs emailed plaintiff in response:
Your report number is #1304987 for what we discussed yesterday. I spoke with the investigators and they need a couple of things from you to solidify your evidence (and to prepare for [Metropolitan Police Department's] involvement).
Email of Jul. 23, 2013 from Combs to Pl., Pl.'s Ex. 79, at ID 000138. Combs gave plaintiff specific instructions on how to transmit to GWPD VT's texts, emails, and voicemails, and she added:
I know this is a lot to do, but we want to make sure your case is strong and complete. You have the evidence and a good chance of getting a protection order through DC, so we want to make sure all of our evidence meets the standards. We don't want to give them any reason to deny it. If any of this is too much, you can give me a call and I can help you walk through it.
A week later, plaintiff followed up with Combs with the evidence she had gathered but redacted portions of the material and explained her decision not to pursue the protective order.
*18I blacked out some of the text from the PDF emails because the information was too personal. I don't know if this is sufficient for GW's case. But it's all I am willing to give. I started going through my text history, and I realized it's just too painful. I don't really care about the protection order.... I feel like it will keep me safer and healthier to put all of this out of mind as much as possible instead of going through it all and trying to take any action.... I really appreciate your help though. Thanks.
Email of Jul. 29, 2013 from Pl. to Combs, Pl.'s Ex. 79, at ID000139. When the redactions she made to the emails did not properly mask the text that plaintiff wanted blacked out, she told Combs "if the detailed emails aren't enough, I really don't care if GW takes action or not."
During July 2013, the University was also engaged in a discussion about what to do about VT going forward. On July 24, 2013, GWPD Police Chief Kevin Hay sent an email to Gabriel Slifka and Mark Levine with the subject "Cyber-stalking."
Based on his gross misconduct ignoring the no contact order and his history. I believe [O]SRR needs to take more affirmative action with this case .... When you see the evidence collected in the case ..., we should talk about additional sanctions. We might consider convening a Threat Assessment Team to conclude this matter .... His obsessive behavior indicates he will most likely come to GW to stalk Ms. Prasad when classes resume.
Email of Jul. 24, 2013 from Hay to Slifka and Levine, Pl.'s Ex. 80, at AA0010685-6. Shortly thereafter, the University issued an order barring VT from all University property which stated that he would be subject to arrest if he was found there. Interdepartmental Mem. of Jul. 29, 2013, Pl.'s Ex. 81, at AA0001115.
In late August of 2013, plaintiff told Combs for the first time that VT had sexually assaulted her two years earlier - a total of five times in 2011. See Coordinator Victim Servs. Report Form, Aug. 29, 2013, Pl.'s Ex. 11, at AA0001933 ("3/2011 2x ... 12/2011 3x"); Confidential Sexual Assault Report Form, Aug. 29, 2013, Pl.'s Ex. 11, at AA0001934.13 But even then, plaintiff explicitly directed Combs to keep the information confidential. Combs Dep. at 262:22-263:8 (stating plaintiff "didn't want [the information] to go anywhere"). Combs told plaintiff about the Title IX resources that GW could offer if she ever needed them, or if she changed her mind about reporting the sexual assaults.
*19In the fall of 2013, plaintiff returned to campus as a graduate student, and she obtained a Temporary Protection Order from D.C. Superior Court, barring VT from contacting or communicating with her. Temporary Protection Order (Sept. 30, 2013), Def.'s Ex. 57, at AA0008751. It remained in effect through November 5, 2013. See Email of Oct. 21, 2013 from Pl. to Combs, Pl.'s Ex. 87, at AA0007832 (sending the order to Combs). Plaintiff has testified that VT did not violate the Temporary Protective Order. Prasad Dep. at 162:8-10.15
VI. The University Agreed to Let VT Earn His Degree with Conditions
On October 29, 2013, GW and VT entered into an agreement. Letter of Oct. 29, 2013 from GWU to VT, Def.'s Ex. 61, at AA0001501-02 ("October 2013 Agreement" or "Oct. 2013 Agreement"). VT needed two more classes to graduate with a double major in Sociology and Economics, and the University agreed that he could finish his degree by completing those classes somewhere other than GW if he fully complied with a number of conditions - among them that he "remain in compliance with the No Contact Order issued ... on April 1, 2013" for three years.
At the same time, plaintiff was working with a lawyer to have the Temporary Protection Order against VT, which was set to expire on November 5, replaced with a Civil Protection Order, which would remain in place for a year. See Emails of Oct. 30, 2013 between Pl. and M. Ornstein, Def.'s Ex. 58, at AA0008409. She told the lawyer: "VT only stopped contacting me once I took legal action," and "UPD only has the power to protect me if I am on campus, which is a small fraction of the time."
In early January 2014, plaintiff unblocked VT on Facebook, which allowed VT to send her messages through its messenger function. See Facebook Messages, Def.'s Ex. 4, at RFP 000059-65 (showing messages dated as of Jan. 2, 2014). She testified that she unblocked him so that she could view his posts and photos "to know what his state of mind was since he was continuing to harass [her]." Prasad Dep. at 190:16-191:11, 192:9-16. Plaintiff responded to VT's messages, telling him that he could not be active on her Facebook page and not to "like" things on the page. Facebook Messages, Def.'s Ex. 4, at RFP 000063.16
On January 24, 2014, plaintiff told Suzanne Combs, GWPD's Coordinator of Victims' Services, that VT had been communicating *20with her in a variety of ways, including by text, calling, and Facebook, although plaintiff told Combs she was "not looking to take action at this point." Email of Jan. 24, 2014 from Pl. to Combs, Pl.'s Ex. 100, at AA0007828. Combs reported the violations to GWPD the same day. GWPD Incident Report of Jan. 24, 2014, Pl.'s Ex. 9, at AA0001474-75.
VII. The University Withdrew the October 2013 Agreement
On January 30, 2014, GWPD received a report from University Associate General Counsel Toi Carter about harassing and prank calls VT made to "offices across the university." GWPD Incident Report of Jan. 30, 2014, Pl.'s Ex. 101, at AA0001358-64. Carter notified VT that he "substantially and repeatedly" violated the October 2013 Agreement. Letter of Feb. 28, 2014, Def.'s Ex. 71, at AA0011474-75 (describing VT's "excessive number calls to [Carter's] office, ... sometimes as many as 80 or more a day, and profanity-laced threats"). The University formally rescinded the October 2013 Agreement on March 19, 2014 and reinstated the June 4, 2013 suspension. Letter of Mar. 19, 2014, Def.'s Ex. 73, at AA0011566-68 ("The university has withdrawn its consent to awarding your degree and the [OSRR] is proceeding in accordance with the terms of the June 4, 2013 letter ... because of your failure to meet academic and other conditions described in the October 29, 2013 Agreement.").
VIII. The University [redacted] Granted VT an Ungraduated Degree Retroactively
[redacted] the University granted him an undergraduate degree in July 2014 retroactive to May 2013.
In the fall of 2014, plaintiff moved to Tampa, Florida to live with her brother and sister-in-law, and she undertook her graduate courses for that semester by distance learning. Prasad Dep. at 214:11-21. By this time, she had not seen VT in fifteen months.
In November and December of 2014, plaintiff reported to GWPD and OSRR that VT had violated the NCO by communicating with her while she was in Florida. See GWPD Incident Report of Nov. 14, 2014, Pl.'s Ex. 10, at AA000495-96; Email of Nov. 18, 2014 from Pl. to Slifka, Pl.'s Ex. 116, at AA0009724-25; GWPD Suppl. Case Report of Dec. 4, 2014, Pl.'s Ex. 10, at AA0000504-08; GWPD Suppl. Case Report of Dec. 16, 2014, Pl.'s Ex. 10, at AA0000509-12.17 Slifka told plaintiff that OSRR no longer had a role in the matter because VT was no longer a student at the University and her point of contact was now GWPD. Email of Dec. 5, 2014 from Slifka to Pl., Pl.'s Ex. 118, at AA0010781-82.
I encourage you to continue to communicate with GWPD about [VT's] behavior. I am aware that Ms. Suz Combs of GWPD has been in the process of trying to reach you to obtain further information and documentation in relation to violations of the No Contact Order.
*21
Captain Mark Balazik explained the situation to Combs in an email:
[S]he is still our student but he is not and he now lives out of state. I understand that Ms. Prasad has been reluctant to involve the Court. If she continues to demand service without taking advantage of the resources that you have offered to facilitate for her, let me know and we will deal with her and her mother.
Email of Dec. 6, 2014 from Balazik to Combs, Pl.'s Ex. 118, at AA0010781. Internal GWPD email at this time showed that Interim Chief Demes offered to talk to VT even though he was no longer a student "to try to talk some sense into his head," but Captain Balazik recommended that Demes "refrain" and "that ship has sailed," stating that VT was a former student who was "quite unstable." Email of Dec. 7, 2014, Pl.'s Ex. 118, at AA0010780. Captain Glaubach suggested that the school should rescind his degree.
In late December 2014, plaintiff filed a police report in Florida complaining of VT's online stalking and cyber-harassment. Sarasota Cty. Sheriff's Office Report of Dec. 22, 2014, Pl.'s Ex. 119, at AA0008137-38 ("In the past three months, Ricca advised, she has received approximately 30 emails and they have caused her considerable anguish and she is afraid he will come to look for her. Ricca stated that none of the communications from the suspect are threatening in any way but he tells her that he loves her then, at a later time, he hates her.").
Plaintiff returned to GW in early 2015 for the final semester of her graduate studies. Def.'s SOP ¶ 70. In January 23, 2015, plaintiff sent an email to a reporter for the University's student newspaper, The Hatchet , to inquire whether the newspaper would be interested in writing about her experience "reporting dating violence at GW." Email of Jan. 23, 2015 from Pl. to C. Murphy, Def.'s Ex. 28, at RFP 001302. In the email, plaintiff confirmed that the only assault she had reported to the GW was the physical attack on March 30, 2013: "I never reported any of the sexual abuse (too ashamed)."
In February 2015, plaintiff learned that VT had received his degree from GW. Letter of Jul. 14, 2015 from Prasad to GW, Pl.'s Ex. 28, at RFP 001531.
IX. Plaintiff Obtained a Civil Protection Order against VT and Graduated in 2015
In late February 2015, plaintiff returned to D.C. Superior Court and petitioned for a Civil Protection Order against VT. Petition for Civil Protection Order, Feb. 27, 2015, Def.'s Ex. 66, at RFP 001325-29 (listing thirteen instances in which VT violated GW's No Contact Order from May 23, 2014 through Feb. 12, 2015). She obtained a temporary order from the court that same day, Temporary Protection Order, Def.'s Ex. 67, at RFP 001330, and the order became permanent on March 12, 2015, effective for one year. See Civil Protection Order, Pl.'s Ex. 98, at AA0000477-79. VT did not violate either order, Prasad Dep. at 221:19-222:1, and plaintiff did not renew the order when it expired on March 11, 2016.
*22PROCEDURAL HISTORY
Plaintiff initiated this action on October 21, 2015. Compl. [Dkt. # 1]. The complaint included five counts: 1) violations of Title IX, 2) breach of contract, 3) promissory estoppel, 4) negligent infliction of emotional distress, and 5) negligent retention.
On December 3, 2015, defendant moved to dismiss Counts Two through Five. Def.'s Mot. to Dismiss [Dkt. # 63]. It did not move to dismiss Count One, the Title IX claim. See
On May 1, 2018, defendant moved for summary judgment on the four remaining counts. Def.'s Mot. for Summ. J.; Def.'s Mem. in Supp. [Dkt. # 63] ("Def.'s Mem."). On May 22, 2018, plaintiff opposed the motion with respect to all counts, and filed a cross-motion for summary judgment on the Title IX, contract, and negligent infliction of emotional distress claims. Pl.'s Cross-Mot. for Summ. J. and in Opp. to Def.'s Mot. for Summ. J. [Dkt. # 81] ("Pl.'s Opp."). Defendant filed a reply and cross-opposition on June 11, 2018, Reply Mem. in Supp. of Def.'s Mot. for Summ. J. and Opp. to Pl.'s Cross-Mot. [Dkt. # 86] ("Def.'s Reply"), and plaintiff filed a cross-reply on June 25, 2018. Cross-Reply in Supp. of Pl.'s Cross-Mot. for Summ. J. [Dkt # 89] ("Pl.'s Reply"). On December 11, 2018, the Court heard oral argument on the cross-motions. Min. Entry (Dec. 11, 2018).
STANDARD OF REVIEW
Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The party seeking summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett ,
The mere existence of a factual dispute is insufficient to preclude summary judgment. Anderson v. Liberty Lobby, Inc. ,
"The rule governing cross-motions for summary judgment ... is that neither party waives the right to a full trial on the merits by filing its own motion; each side concedes that no material facts are at issue only for the purposes of its own motion." Sherwood v. Wash. Post ,
ANALYSIS
I. Plaintiff's Claim under Title IX Fails Because the University's Response to the Sexual Harassment was Not Clearly Unreasonable
In Count I, plaintiff asserts that defendant violated Title IX of the Education Amendments of 1972 ("Title IX"). Title IX provides that "[n]o person ... shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance."
only where they are deliberately indifferent to sexual harassment, of which they have actual knowledge, that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.
Davis Next Friend LaShonda D. v. Monroe Cty. Bd. of Educ. ,
Both parties have moved for summary judgment on this count. Defendant argues that it did not have the actual knowledge of sexual harassment that would have given rise to obligations under Title IX because plaintiff never reported sexual misconduct by VT to the University, Def.'s Mem. at 23-24; that plaintiff cannot show deliberate indifference on the part of the school, id. at 24-29; and that plaintiff cannot show she was deprived of educational benefits. Id. at 29-30. Plaintiff maintains that she is entitled to judgment on this count because she was subjected to harassment that is actionable under Title IX, Pl.'s Opp. at 7-12; GW had actual knowledge of the harassment and was deliberately indifferent to it, id. at 12-22; and this impeded her access to an educational opportunity or benefit offered by the University. Id. at 22-24. The Court disagrees with the school's suggestion that it was never under a Title IX obligation in this *24case, but it will grant summary judgment in favor of the University on this count because its response to the information of which it was aware at any particular relevant point in time was not "clearly unreasonable in light of the known circumstances." Davis ,
A. The University had actual knowledge of the sexual nature of VT's harassment of the plaintiff.
Defendant argues that the case falls outside of Title IX because plaintiff has produced no evidence that GW "had knowledge that she had ever claimed to be the victim of sexual misconduct." Def.'s Mem. at 23. It emphasizes that plaintiff did not inform the school that she had previously been sexually assaulted at the time she reported the March 2013 attack, and it points out that she specifically prohibited the one official in whom she did confide in 2013 about past sexual assaults from reporting them or otherwise disseminating the information. Id. at 23-24. Indeed, plaintiff acknowledged this in her own account of her interactions with the school. Email of Jan. 23, 2015 from Pl. to C. Murphy, Def.'s Ex. 28, at RFP 001302 ("I never reported any of the sexual abuse (too ashamed).").
In her opposition and cross-motion, plaintiff directs the Court's attention to the accumulation of profane and sexually explicit messages from VT that she provided to the school in early 2012, and to GWPD's characterization of the March 2013 attack as "domestic violence." Pl.'s Opp. at 12-15. She also insists that her August 2013 report to Suzanne Combs, GWPD Coordinator of Victims' Services, that VT had sexually assaulted her five times in 2011, supplies evidence that the school was on notice that his actions were sexual in nature, and that all of those circumstances triggered GW's obligations to her under Title IX. Id. at 7-11.
In response, GW characterizes VT's messages as "mere jealousy, possessiveness, or anger about a sexual partner's infidelity," and it asserts that plaintiff cannot use the communication to show that the school knew VT was animated by hostility on the basis of her sex. Def.'s Reply at 6, citing Wolfe v. Fayetteville, Ark. Sch. Dist. ,
"Whether gender-oriented conduct is harassment depends on a constellation of surrounding circumstances, expectations, and relationships." Davis ,
While the Court does not conclude here that the alleged sexual assaults that went unreported gave rise to statutory obligations, and it need not reach the question of whether those that were reported years later with the proviso that they remain confidential triggered a legal duty, it does find that defendant is not entitled to summary judgment on the grounds that it was unaware of the sexual nature of VT's ongoing harassment and abuse. Plaintiff has presented ample evidence that would enable a rational juror could find that she was subjected to "severe, pervasive, and objectively offensive" sexual harassment, and that the school had actual knowledge of his conduct. See, e.g. , Incident Report of Jan. 17, 2012, Pl.'s Ex. 6, at AA0000601-624 (forwarding sexually threatening emails that VT had sent to plaintiff and her friends from London); Email of Apr. 24, 2013 from Pl. to Slifka, Pl.'s Ex. 26, at AA0000765-68 (forwarding screen shots of sexually harassing messages from VT to plaintiff); Email of May 3, 2013 from Pl. to Slifka, Pl.'s Ex. 7, at AA0000579-81 (forwarding sexually harassing emails from VT to plaintiff); see also Emails of Apr. 1, 2013 among Esquivel, Lico, Goretsky, Miller, and Slifka, Pl.'s Ex. 47, at AA0010492-3 (stating that Lico was going to contact Deputy Title IX Coordinator Pereira given "that there may be a sexual assault history here").
The avalanche of sexually explicit insults and threats in this case is easily distinguished from the "mere name-calling" described in the Davis opinion, and defendant's somewhat dismissive characterization of the multitude of disturbing communications cannot be squared with the tone and content of the communications themselves. Viewing this evidence in the light most favorable to plaintiff, the Court finds that a rational trier of fact could decide that VT's intimidating and demeaning communications, the stalking, and the assaultive behavior were all motivated by hostility towards plaintiff's gender, that the harassment was severe, pervasive, and objectively offensive, and that the University knew about it, giving rise to obligations under Title IX.
But this does not end the inquiry.
B. The University was not deliberately indifferent to VT's sexual harassment.
To be liable under Title IX, the University must have responded to the harassment plaintiff faced with deliberate indifference. Schools "are deemed 'deliberately indifferent' to acts of student-on-student harassment only where [their] response to the harassment or lack thereof is clearly unreasonable in light of the known circumstances." Davis ,
Plaintiff tends to talk about her time at GW in its entirety, but in the analysis of deliberate indifference below, the Court finds it appropriate to assess the school's conduct based on the circumstances that pertained to each critical juncture.
1. GW's response to VT's harassing emails from London in 2012 was not clearly unreasonable.
Title IX was not implicated in this case in any way until plaintiff brought VT's conduct to the University's attention in 2012. Once that happened, the school responded in an appropriate and timely fashion.
The University imposed the first NCO within a week of plaintiff's January 17, 2012 report that she was receiving harassing messages from VT while he was studying in London, NCO of Jan. 25, 2012, Pl.'s Ex. 6, at AA0000598, and she was given GWPD's emergency and Victims' Services contact information twice. See Email of Feb. 7, 2012 from Engle to Pl., Def.'s Ex. 81, at AA0009393; Email of Mar. 19, 2012 from Engle to Pl., Def.'s Ex. 82, at AA0009391. Plaintiff never followed up with the Victims' Services Coordinator, nor did she ever complain that VT violated the order. Rather, she asked the school to rescind it. Email of Oct. 18, 2012 from Pl. to McConnell, Def.'s Ex. 16, at AA0010276; OSRR Admin. Action /Additional Correspondence, Def.'s Ex. 19, at AA0000585 (showing the school rescinded the first NCO on January 3, 2013 "per the request of Ms. Prasad").
Plaintiff maintains that GW's response to her concerns was insufficient. Pl.'s Reply at 14-17. But the undisputed facts reveal that GW had no reason to believe the 2012 NCO was ineffective or that plaintiff continued to experience harassment after it was imposed or lifted. While the record shows VT violated the order and that plaintiff may not have welcomed all of his communications during this time, Pl.'s SODF ¶ 11, there is no evidence that she ever reported his violations to GW, and there is evidence that she resumed consensual communications while the NCO was in place.
*272. GW's response after the assault was not clearly unreasonable.
Plaintiff suggests that the school's response after she reported the assault should be seen as further proof of its deliberate indifference. Pl.'s Opp. at 17-19, citing Vance v. Spencer Cty. Pub. Sch. Dist. ,
But "[t]he test for whether a school should be liable under Title IX for student-on-student harassment is not one of effectiveness by hindsight." Porto v. Town of Tewksbury ,
When plaintiff reported on April 1, 2013 that she had been assaulted, she made it clear that she did "not wish to take any further action at this time." GWPD Incident Report of Apr. 1, 2013, Pl.'s Ex. 7, at AA0000578. However, GW imposed a No Contact Order the same day. Apr. 1, 2013 No Contact Order, Pl.'s Ex. 7, at AA0000571-72. Also, GW's Deputy Title IX Coordinator at the time, Tara Pereira, met with plaintiff immediately to determine whether she needed Title IX services after the assault. See Email of Apr. 1, 2013 from Lico to Esquivel, Pl.'s Ex. 47, at AA0010492 (stating that Lico would contact Deputy Title IX Coordinator Pereira); Pereira Dep. at 111:4-112:18; Combs Dep. at 34:3-35:5.21 Plaintiff characterizes Pereira's conclusion that plaintiff did not present Title IX concerns at that time as evidence of GW's deliberate indifference. Pl.'s Opp. at 20-22, citing Pl.'s SOF ¶¶ 99-119. But the evidence suggests that the school was alert to potential Title IX obligations since it had its Deputy Title IX Coordinator meet with plaintiff that day, "[e]ven though she didn't file a report about [sexual assault]." Email of Apr. 1, 2013 from Lico to Esquivel, Pl.'s Ex. 47, at AA0010492. Given that discovery uncovered no further facts about what transpired at this meeting, there is no basis for this Court - or a jury - to second guess Pereira's determination. See Burwell v. Pekin Cmty. High Sch. Dist. 303 ,
*28Davis ,
The day that plaintiff reported that VT had appeared outside at her window in the middle of the night, April 24, 2013, Slifka notified GWPD and personally warned VT to stop violating the No Contact Order. Email of Apr. 24, 2013 from Slifka to Glaubach, Pl.'s Ex. 56, at AA0010471; Email of Apr. 24, 2013 from Slifka to VT, Pl.'s Ex. 43, at AA0001262. Plaintiff complains that Slifka did not respond to her April 24 email directly until May 3, Pl.'s SOF ¶ 81, but the record shows that he was not ignoring the new development even if he did not get back to plaintiff herself immediately. At that time, there was no reason for Slifka to assume that his warning to VT would go unheeded, because GW had never been informed that VT had violated the first NCO, and this was the first time plaintiff complained that VT was violating the second one. Email of Apr. 24, 2013 from Pl. to Slifka, Pl.'s Ex. 26, at AA0000765 (telling Slifka that she wanted to give him "an honest update" about her ongoing communications with VT during this time "because I now feel harassed").
After plaintiff formally identified VT on April 25, 2013, the school took decisive action: on May 10, GW charged VT; on May 21, it held a disciplinary hearing and suspended him; and by June 20, it denied his appeal. Pl.'s SOF ¶¶ 101-02, 117. And in the interim, on May 14, GWPD's Victims' Services Coordinator Suzanne Combs gave plaintiff information about how to obtain a Temporary / Certified Protection Order that could be enforceable in court, which plaintiff did not pursue. See Email of May 14, 2013 from Combs to Pl., Pl.'s Ex. 79, at ID 000137; Combs Dep. at 66:5-17; 69:2-20.
Plaintiff complains now that the May 21 hearing should have taken place sooner, but at the time, she thanked Slifka for the school's handling of the matter. Email of May 13, 2013 from Pl. to Slifka, Def.'s Ex. 49, at AA0009306-07 ("I am glad GW has taken the situation between [VT] and me seriously, listened to my complaints, and included my input in the decision-making process.... Overall, I do feel like I am leaving this university with the situation having been addressed, so thank you."). Furthermore, the period of less than a month between her April 24 formal identification of VT to convening the May 21 disciplinary hearing was not an unreasonable delay. See Roskin-Frazee v. Columbia Univ. , No. 17 CIV. 2032,
*29In sum, plaintiff's arguments ignore the fact that the school suspended VT promptly after she formally identified VT as her assailant, ignores the evidence that plaintiff's own actions repeatedly undermined the school's efforts to protect her, and ignores the fact that plaintiff initially refused to pursue other remedies available to her, namely a civil protection order.
3. GW's response after VT was suspended was not clearly unreasonable.
Plaintiff also faults the school for its handling of VT after it ordered his suspension. The evidence shows that VT continued to contact and harass plaintiff in violation of the NCO, and plaintiff describes the school's attempts to stop him from communicating with her as inadequate. But the evidence also establishes that she repeatedly declined to seek a civil protection order, and that she opened the door to VT's renewed communications with her.
In July 2013, after plaintiff had left campus for the summer and VT had left for good, plaintiff informed the school that VT was still communicating with her. In response, GW issued an order that VT would be arrested if he was found on University property. Interdepartmental Mem. of Jul. 29, 2013, Pl.'s Ex. 81, at AA0001115. Combs again gave plaintiff information about how to obtain a Civil Protection Order, which would give plaintiff broader protection, and plaintiff again failed to pursue that option. See Email of Jul. 23, 2013 from Combs to Pl., Pl.'s Ex. 79, at ID 000138; see also Email of Jul. 29, 2013 from Pl. to Combs, Pl.'s Ex. 79, at ID000139 ("I don't really care about the protection order."). She subsequently reported additional violations of the NCO, but she repeatedly told Combs that she was not looking to take action. Email of Jan. 24, 2014 from Pl. to Combs, Pl.'s Ex. 100, at AA0007828.
Plaintiff identifies Combs' failure to provide her with Title IX resources in August of 2013 - when plaintiff first revealed the sexual assaults that had taken place two years earlier - as a key instance of GW's failure to fulfill its statutory responsibilities and a basis for the issuance of judgment in her favor. In assessing this contention, the Court notes at the outset that plaintiff told Combs she could not disseminate the information, and honoring plaintiff's wishes to keep the students' prior history confidential can hardly constitute deliberate indifference. See Roe v. St. Louis Univ. ,
First, there is no basis to believe that providing plaintiff with Title IX resources *30in particular would have changed VT's behavior. Indeed, her only suggestion is that it would have changed her behavior. "[H]ad Miss Prasad been referred to the Title IX office in the first place it is quite possible that she could have turned to them and to counseling to help navigate the situation that she found herself in." Dec. 11, 2018 Hr'g Tr. at 7, 14 (emphasis added). But as counsel's choice of language reflects, this is entirely speculative, particularly given that plaintiff received counseling and therapy throughout much of her time at GW. See Pl.'s SOF ¶¶ 33, 43, 74, 158-59, 161, 167, 171, 179; Pl.'s SODF ¶ 73; Prasad Dep. at 242:8-246:3. The assertion also assumes that plaintiff would have been willing to work with a Title IX counselor - an assumption that is undermined by her insistence that Combs not report or otherwise share the information about the earlier sexual assaults. See also Email of Jan. 23, 2015 from Pl. to C. Murphy, Def.'s Ex. 28, at RFP 001302 (acknowledging that she never reported sexual assaults to the school).24
Furthermore, the record shows that the school used the limited tools available to it after VT left campus to try to enforce the NCO. After June 2013, VT was no longer on campus; he was either suspended or, by June 2014, a former student. His harassment of plaintiff during this time consisted of sending her gifts and messages, primarily through non-GW platforms. See, e.g. , GWPD Incident Report of Jul. 22, 2013, Pl.'s Ex. 8, at AA0001514-25 (reporting calls and Linkedin messages, emails sent from VT's gmail.com account); GWPD Incident Report of Nov. 14, 2014, Pl.'s Ex. 10, at AA000495-96 (same).
Title IX "confines the scope of prohibited conduct based on the recipient's degree of control over the harasser and the environment in which the harassment occurs," Davis ,
To be sure, the fact that a student uses electronic platforms outside the auspices of a school's computer system does not necessarily insulate a school from liability for harassment under Title IX. In Feminist Majority Found. v. Hurley ,
The deliberate indifference standard "is sufficiently flexible to account both for the level of disciplinary authority available to the school and for the potential liability arising from certain forms of disciplinary action." Davis ,
Here, the University did discipline VT, but after it suspended him, its options for controlling his behavior were greatly reduced. Moreover, the school's efforts were often compromised or undermined by plaintiff's own behavior. The record shows that even after VT had been suspended for assaulting her, plaintiff opened the door to further communications while the NCO was in place, Prasad Dep. at 190:16-191:11, 192:9-16, 148:14-149:2 (unblocking him on Facebook or calling to express condolences about a friend of his), and she refused to press charges or avail herself of other remedies. See, e.g. , GWPD Incident Report of Jan. 24, 2014, Def.'s Ex. 9, at AA0001471-75 (stating she was "not looking to take action"). When she finally obtained a Civil Protection Order in February 2015, as GWPD's Victims' Services Coordinator Combs had encouraged her to do for years, it worked.26
The Court holds that GW's efforts to thwart an unstable, aggressive, and persistent harasser do not meet the high standard for deliberate indifference. There is no question that VT's actions towards plaintiff and GW staff were abhorrent and that plaintiff has suffered as a result of his manipulation and unhinged behavior. But this is simply not a case where a school ignored her plight or "made no effort whatsoever." C.R.K. v. U.S.D. 260 ,
II. Plaintiff's Breach of Contract Claim Fails Because the October 2013 Agreement Cannot be Enforced against the University
Plaintiff argues that she was an intended third-party beneficiary of the October 2013 Agreement between GW and VT, and that GW breached that agreement by giving VT his degree despite his failure to comply with its terms. Pl.'s Opp. at 25-31; Oct. 2013 Agreement, Def.'s Ex. 61, at AA0001501-02. GW moves for summary judgment on this count on the grounds that the agreement which forms the basis for Count Two was rescinded. Def.'s Mem. at 30-31. It also contends that plaintiff was not an intended third-party beneficiary of the agreement, and it submits that even if she was, GW was the promisee, and not the promisor in the contract, so no enforcement action can be brought against it. Id. at 31-35; Def.'s Reply at 22-28.
The record reflects that the October 2013 Agreement between VT and the school was indeed rescinded by GW on March 19, 2014. See Letter of Mar. 19, 2014, Def.'s Ex. 73, at AA0011568 ("The university has withdrawn its consent to awarding your degree and the Office of Student Rights & Responsibilities is proceeding in accordance with the terms of the June 4, 2013 letter ... because of your failure to meet academic and other conditions described in the October 29, 2013 *33Agreement."). [redacted] Def.'s Mem. at 31 n.23. The Court need not decide this issue, though, because it finds as a matter of law that plaintiff could not enforce either contract against GW since GW was the promisee in the agreement between the institution and VT.
In a letter from GW's Senior Associate Dean of Students to VT, the University offered to award VT a degree notwithstanding his disciplinary problems, contingent upon VT's successful completion of his academic and financial prerequisites and his compliance with five conditions:
First Condition: You must not be named as a subject in any George Washington Police Department incident report at any time in the future.
Second Condition: You must remain in compliance with the No Contact Order issued to you on April 1, 2013 for a period of three years from the date of this letter.
Third Condition: You must not at any time in the future ... register for or attend any undergraduate, graduate ... or other classes at GW ....
Fourth Condition: You must not engage in any conduct at any time in the future that violates university policy, including without limitation policies and laws applicable to harassment, cyber bullying, spamming, hacking, or responsible use of technology, nor may you cause or encourage any other person to violate such policies or law on your behalf.
Fifth Condition: You must comply with all instructions set forth in the barring notice dated August 10, 2013, including without limitation that you may not enter any university property ... in the District of Columbia and Virginia. If you are found to be on or in any property owned or leased by the university, you will be trespassing and may be arrested.
Oct. 2013 Agreement, Def.'s Ex. 61, at AA0001501-02 (underlines in original). VT signed the letter on November 4, 2013, thereby accepting these obligations. Id. at AA0001502 ("I wish to obtain my degree and I accept terms and conditions set forth in this letter.").
By contrast, the language related to GW in the agreement does not enumerate obligations, but it speaks in terms of the University's "rights" in the event of VT's non-compliance.
Please be advised that, in offering you this path to obtain your degree despite your current disciplinary status, the university is providing you with a unique and significant accommodation. That offer, however, is fully contingent on your completion of the steps and conformity with the conditions set forth in this letter. If at any time you violate any of these conditions prior to being awarded your degree, the university will have the absolute right to withdraw its consent to awarding you that degree and the Office of Student Rights & Responsibilities will have the absolute right to proceed in accordance with the terms of the June 4, 2013 letter from Peter Konwerski, Vice Provost and Dean of Student Affairs. If at any time you violate any of these conditions after you are awarded your degree, the university will have the absolute right to restore your disciplinary record and reinstate the notation of disciplinary suspension on your academic transcript.
Oct. 2013 Agreement at AA0001502. [redacted].
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A third party may sue for breach of contract "if the contracting parties intended the third party to benefit." District of Columbia v. Campbell ,
Plaintiff reasonably maintains that she is an intended third-party beneficiary of the agreements between the school and VT because several of its provisions, in particular, the requirement to comply with the No Contact Order, " 'would be meaningless' unless read 'as manifesting an intention to benefit' " her. Pl.'s Opp. at 26, quoting A.S. Johnson ,
As another court in this district stated in John D. Neumann Props., Inc. v. Washington Metro. Area Transit Auth. , No. Civ. A. 86-2013,
In Campbell , the District entered into an agreement with a general contractor for a public works project.
*35promised the District that it would obtain a payment bond, making the general contractor the promisor and the District the promisee.
Here, the University's original offer was contingent upon VT's performance of two steps and his compliance with a set of conditions. Oct. 2013 Agreement at AA0001501-02. If VT did not complete his academic requirements, or if he violated any of the conditions, the University retained the "absolute right" to withdraw its consent to award him a degree. See
III. Plaintiff's Claim for Negligent Infliction of Emotional Distress Fails Because Plaintiff has Presented No Expert Testimony regarding the Standard of Care
Plaintiff alleges that GW is liable to her for negligent infliction of emotional distress because it owed her a duty to investigate and address VT's harassing behavior, and it breached that duty. Compl. ¶¶ 130-38. She alleges that as a result of GW's failure to fulfill its obligations, she suffered, and continues to suffer, from severe post-traumatic stress disorder, and she states that her unabated concerns for her life and safety have required her to seek mental health counseling and medical treatment. Compl. ¶¶ 135-36. Defendant has moved for summary judgment on this count on several grounds, arguing that: plaintiff cannot establish the existence of the special relationship needed to support a negligent infliction of emotional distress claim;30 plaintiff did not proffer the expert testimony necessary to establish the standard of care that the University owed her as its student; and plaintiff cannot prove that her emotional distress was caused by the University given the evidence of pre-existing psychiatric problems and other traumatic events in her life unrelated to VT. Def.'s Mem. at 35-41. Plaintiff filed a cross-motion for summary judgment, responding that the facts reveal the existence of a special relationship with GW; an expert witness is not required because the nature of the duty defendant undertook as part of that relationship falls within the realm of common knowledge and everyday experience; and there was an especially likely risk that GW's negligence in performing its duty would cause plaintiff serious emotional distress. Pl.'s Opp. at 31-40.
A plaintiff may recover for negligent infliction of emotional distress under the "special relationship theory" if she can show that:
(1) the defendant has a relationship with the plaintiff, or has undertaken an obligation to the plaintiff, of a nature that necessarily implicates the plaintiff's emotional well-being, (2) there is an especially *36likely risk that the defendant's negligence would cause serious emotional distress to the plaintiff, and (3) negligent actions or omissions of the defendant in breach of that obligation have, in fact, caused serious emotional distress to the plaintiff.
Hedgepeth v. Whitman Walker Clinic ,
While the Court does not agree with GW's suggestion that as a matter of D.C. law, expert testimony is a necessary component of every negligence case, it will grant summary judgment in favor of defendant in this case because the assistance of an expert was needed to establish the appropriate standard of care for a university faced with the complicated circumstances that unfolded here. It also finds that plaintiff's claim would fail in any event because she has not adduced evidence to establish that GW's alleged negligence was the cause of her emotional distress. Given the problems with these aspects of plaintiff's claim, the Court need not decide whether she has established the existence of the special relationship or undertaking that would be the predicate for a negligent infliction of emotional distress claim.
A. Expert testimony on the standard of care is required in this case.
Defendant argues that expert testimony on the applicable standard of care is necessary to prove plaintiff's claim for negligent infliction of emotional distress. Def.'s Mem. at 35-36. Plaintiff takes the position that the standard of care the University owed her is the "traditional reasonable person standard, which the jury can ascertain without the aid of expert testimony." Pl.'s Opp. at 38, quoting Robinson v. Wash. Metro. Area Transit Auth. ,
Under D.C. law, a "plaintiff in a negligence action bears the burden of proof on three issues: 'the applicable standard of care, a deviation from that standard by the defendant, and a causal relationship between that deviation and the plaintiff's injury.' " Toy v. District of Columbia ,
"The decision whether to admit or require expert testimony on a particular set of facts is confided to the sound discretion of the trial court," and that discretion is "broad." Varner v. District of Columbia ,
The relevant standard of care at issue here is that owed by a university to a student who has reported harassment at the hands of another student, so none of these precedents is particularly apt. However, with respect to universities, and in particular, their disciplinary processes, the Court of Appeals has concluded that it fell within the discretion of the trial judge to require expert testimony involving issues of "safety, security and crime prevention" in an academic setting. Varner ,
The court held that "the trial judge did not err or abuse his discretion in holding that, without expert testimony, there was insufficient evidence of negligence to present a jury question."
After considering all of these principles, the Court concludes that the duty that was alleged to have been breached here is one that necessarily involves the application of professional judgment, and therefore, plaintiff could not carry her burden to establish a breach of duty without the testimony of a witness "who is qualified as an expert by knowledge, skill, experience, training, or education," see Fed. R. Evid. 702, to explain what that duty consists of and how the institution's judgment should reasonably have been exercised in these circumstances. While the Court is not announcing a blanket rule that an expert must testify in every case involving an academic institution, it finds in its discretion that plaintiff could not meet her burden to establish the standard of care, or that the standard was breached in this instance, given the absence of any expert guidance on how reputable universities typically address the extremely difficult circumstances with which GW was faced in this case, and how they should balance the multiple - and potentially conflicting - interests of the individuals involved and the layers of statutory and common law obligations running to both the victim and the accused. Indeed, this case appears to present a more ambiguous and thornier situation than the one the trial court wrestled with in Varner. See Varner ,
Courts in other districts have required expert testimony in similar circumstances. In A.M.J. v. Royalton Public Schools , No. CIV 05-2541 (PAM/RLE),
*39[A]n expert is necessary to define the standard of care for the school administrators' exercise of professional judgment in Plaintiff's case.... [I]t is beyond the scope of a layperson's knowledge to decide fundamental questions raised by the facts of this case such as whether an investigation was required; what should have been the nature and scope of any such investigation; what were the rights of the accused students, educators, and administrators; were there any applicable privacy limitations; what were the appropriate preventative steps; and what was the appropriate corrective action.
Id. at *3.
Plaintiff posits that "a lay jury using common knowledge would be able to ascertain that GW had a duty to protect Miss Prasad as a student on their campus and specifically a student victim of sex-based violence" and "[t]hat they breached that duty when they failed to connect her with appropriate resources and failed to take adequate disciplinary action against her assailant." Dec. 11, 2018 Hr'g Tr. at 67. But this superficial overview does not give the jury any standard to apply, and it is simply an invitation to apply a strict liability theory that would be inconsistent with law. Indeed, the fact that plaintiff could not be more specific demonstrates that it is beyond the scope of a layperson's knowledge to define the nature of the University's duty.
The average juror would be unable to determine what preventative or disciplinary options were available to shield plaintiff from VT, and what sorts of resources or mental health support should have been provided to plaintiff before and after VT was barred from the campus. It is overly simplistic for the plaintiff to insist that the average juror could simply hear the evidence in this record and apply his or her common sense: would even a thoughtful and dispassionate juror necessarily know what level of response was appropriate at any particular point in this chronology, particularly given how much information about what was actually going on was withheld? What is the standard of care for protecting a victim who refuses to abide by a No Contact Order herself, or who insists that it be lifted? What are the boundaries of a university's authority over the use of social media other than the email accounts under its auspices? What should GW have done once it received copies of the texts that included references to possible [redacted] and to the troubling physical aspects of their consensual sexual relationship?
What legal impediments are imposed by the statutory and common law rules that protect individual privacy, and how does a school properly adhere to its obligations under the Health Insurance Portability and Accountability Act of 1996 ("HIPAA") and Title IX at the same time? And how should any obligations under Title IX, and the school's discretionary authority to impose disciplinary sanctions, be reasonably balanced against contractual or other obligations, if any, to provide an enrolled student with an education or a degree? What are the limits on a school's ability to separate and counsel young people who are its students but who are also legally adults? At what point and to what extent could the school address the fact that both of these students appear to have struggled with significant mental health issues? Was the university permitted to consider, or inquire into, plaintiff's previous psychiatric history? Or VT's? What about whether he had any prior record of assaultive or stalking behavior? Where and when do the constitutional rights of an accused fit in?
Plaintiff submits that GW's alleged failure to enforce the April 1, 2013 No Contact *40Order was a breach of duty that caused harm to the plaintiff, Dec. 11, 2018 Hr'g Tr. at 68; but what are the steps that a reasonably prudent institution would take to enforce an NCO, particularly after the student is no longer enrolled? What was the nature of the duty the school owed the plaintiff after VT was removed from the campus?
Plaintiff's negligence argument includes both a complaint that the school caused her emotional distress by making her repeat her allegations to too many offices, Dec. 11, 2018 Hr'g Tr. at 69, but also the contention that GW breached its duty to care for her mental health when it waited too long to refer her to another office: the one with specific training in Title IX. Id. at 73. How could a lay juror untangle this inconsistency?
Given the complexity of all of these questions, the absence of any expert testimony as to what the standard of care would be under these circumstances is fatal to plaintiff's case. Because the Court finds the standard of care to be beyond the ken of the average layperson, and plaintiff did not provide the necessary expert testimony, defendant is entitled to summary judgment on the negligence count. See Edwards ,
B. Plaintiff cannot establish causation.
Defendant also moves for judgment on this count on the grounds that plaintiff cannot show that any alleged negligence by GW caused her emotional distress. Def.'s Mem. at 39-41. Plaintiff points to the statement in her medical records that "a significant psychosocial stressor involves being stalked by her ex-boyfriend,"[redacted], and she contends that that evidence, combined with the fact that GW had the obligation and power to prevent VT from stalking her but failed to do so, is enough to support a finding that GW caused her emotional distress. Pl.'s Reply at 22-23. But plaintiff introduced no expert testimony that would connect her interactions with University officials or any alleged omissions on GW's part during the periods of time when it was on notice of VT's behavior to her emotional condition, and the evidence she has produced paints a much more complicated picture.
To prevail on the negligent infliction claim, plaintiff must show that "negligent actions or omissions of the defendant ... in fact, caused serious emotional distress to the plaintiff." Hedgepeth ,
Plaintiff argues that, in her view, GW caused her emotional distress because it repeatedly required her to report VT's actions to multiple offices; it failed to provide her with specific types of support and resources; it failed to respond to most of her reports about VT; it took "little meaningful action" against VT; and it failed to apprise her of those actions it had taken against him. Pl.'s Opp. at 36-37. She acknowledges that she previously suffered from emotional problems, but she posits that her "emotional distress worsened considerably after she met VT, and even more *41dramatically after GW became involved." Id. at 38. Citing the timeline she prepared for this litigation, she observes that in the spring of 2013, she experienced trouble sleeping, anxiety, depression, and situational mild depression. Id. , citing Pl.'s Timeline, Pl.'s Ex. 29, at RFP 0000943. And citing a physician's notes, she asserts that her "severe trauma reactions culminated in a PTSD diagnosis in February of 2014." [redacted]
But a review of this and other evidence in the record leads to the conclusion that no reasonable fact finder could determine that it was GW that "in fact, caused" plaintiff's emotional distress. Hedgepeth ,
[redacted]
[redacted]
While GW was informed in January of 2012 that VT had sent harassing messages to plaintiff from London, and it issued the NCO after she reported the messages, plaintiff did not inform the school when she resumed communications with him, and she did not seek assistance dealing with the other traumatic events she experienced in the fall of 2012. As of October 2012, all GW knew was that plaintiff was seeking to have the NCO lifted and that she needed no help with VT. It had not repeatedly required her to report anything, and it had not been provided with information that would have revealed her need for ongoing support or resources.
Plaintiff attributes her emotional distress and her ultimate PTSD diagnosis to GW's handling of VT's harassment, Pl.'s Opp. at 38, citing Physician's Progress Notes, Pl.'s Ex. 102, at AA0014861, but the February 5, 2014 medical record she cites lists a host of other circumstances that combined to contribute to her condition, while making no mention of the University:
[redacted]
[redacted]
[redacted]
[redacted]
[redacted] Based on the absence of any expert testimony or other affirmative evidence of causation related to GW, as opposed to VT, and the presence of considerable evidence of multiple pre-existing and unrelated contributing factors, the Court holds that plaintiff lacks the evidence she needs to persuade a reasonable juror that GW caused her emotional distress.
IV. Plaintiff's Negligent Retention Claim Fails as a Matter of Law Because it is not Predicated on a Common Law Duty that the University is Alleged to have Breached and There is no Allegation of a Tort Committed by Slifka
In Count Five, plaintiff asserts that the University is liable for the negligent *42retention of OSRR Director Gabriel Slifka because Slifka treated her and other victims of sexual harassment with "callous disregard" and failed to "investigate and address sexual harassment" at GW, and because the school failed to take adequate measures to ensure Slifka followed its written procedures. Compl. ¶¶ 139-46. To be liable for negligently retaining an employee, plaintiff must show that GW "knew or should have known its employee behaved in a dangerous or otherwise incompetent manner, and that the employer, armed with that actual or constructive knowledge, failed to adequately supervise the employee." Brown v. Argenbright Sec., Inc. ,
Relying upon Islar v. Whole Foods Market Group Inc. ,
GW argues that plaintiff has not pointed to any other source of the school's obligation to protect a student from sexual harassment other than Title IX. Def.'s Mem. at 42-43. Plaintiff points to case law that she argues establishes that a school owes a student an ordinary duty of care, and she adds that GW was also bound by the same special duty of care that forms the basis of her emotional distress claim: the duty that GW allegedly undertook to protect her from VT after she complained about his behavior. Pl.'s Opp. at 40. But plaintiff paints with such a broad brush, it is difficult to discern any lines of demarcation between this duty and the school's obligations under Title IX, and her allegations of a common law duty here suffer from the same deficiency that marred the negligent infliction claim: the absence of any expert testimony that defines what the scope of the duty might be.
But even if the school was operating under a clear duty to protect her independent of Title IX, to prove that duty was violated by the retention of Slifka, plaintiff *43would be required to establish that the school was on notice that he posed some danger to her. And defendant argues, based on Islar , that a plaintiff advancing this claim must demonstrate that the employee's conduct was itself actionable as a common law tort. Def.'s Mem. at 43, citing Islar ,
As the district court made clear in Islar, the D.C. Court of Appeals has not yet explicitly announced such a ruling.
In addition, there are significant problems with plaintiff's argument that GW was on notice of any failures that posed a risk to plaintiff, including ordinary negligence, on the part of Slifka. Plaintiff cites to two emails regarding Slifka's handling of other reports of sexual harassment at GW. Pl.'s Opp. at 42. The first is an October 2011 email about another student's experience with the school's response to student-on-student verbal abuse. [redacted]. The author wrote that after another GW student verbally abused her based on her sexual orientation and threw a box of pasta at her, the author raised her arm as if to strike him, but he grabbed her arm and stopped the strike.
The second email was from a parent to Slifka sent in September 2013 - after most of Slifka's involvement with plaintiff. Email of Sept. 30, 2013 to Slifka, Pl.'s Ex. 122, at AA0013801. The parent was unhappy with the school's handling of conditions that had been imposed on a student in a disciplinary hearing, which the parent complained led to his daughter seeing the student at a fraternity house from which he was barred.
Plaintiff also cites a sworn declaration from another student, [redacted], regarding the school's handling of her October 2010 complaint that she was raped by another student. The declarant complains about how the University handled the matter from the outset, but she also states that she initially declined to press charges. [redacted] (stating she did not name her assailant in her initial report and that GWPD advised her that it would not take any action unless she added his name to the report). She also complains about the procedures involved in the disciplinary proceeding after she decided to name her assailant, and the school's handling of the matter after the hearing. Id. ¶¶ 3(d), 4. While the declaration presents a number of complaints about the school's handling of the matter, its only mention of Slifka is that the declarant used a phone in his office to call into the disciplinary hearing rather than have to appear in person in the same room as her assailant: "Mr. Slifka facilitated my calling in to deliver my testimony, and at no point did he explain to me my rights as a complainant during the hearing." Id. ¶ 4(a).
While these emails and the declaration present some evidence that various officials at GW were put on notice of the authors' dissatisfaction with its performance and procedures for addressing sexual assaults, none of them show that Slifka "behaved in a dangerous or otherwise incompetent manner." Beyene v. Hilton Hotels Corp. ,
Plaintiff also points to an internal GW email exchange regarding her own complaint as evidence that the school was on notice about tortious conduct by Slifka. Pl.'s Opp. at 43, citing Emails of Jul. 24, 2013, Pl.'s Ex. 80, at AA0010685-86. But a reading of the full email exchange does not support plaintiff's argument. On July 24, 2013, after VT's suspension, GWPD Chief Kevin Hay wrote Slifka and GWPD Captain Mark Balazik about VT:
Based on his gross misconduct ignoring the no contact order and his history. I believe [O]SRR needs to take more affirmative action with this case ... When you see the evidence collected in the case ..., we should talk about additional sanctions. We might consider convening a Threat Assessment Team to conclude this matter .... His obsessive behavior indicates he will most likely come to GW to stalk Ms. Prasad when classes resume.
I spoke with Gabe on Friday regarding this matter because I was aware that [VT] was suspended from GW this past semester but has not been barred from campus. Usually suspended students are automatically barred at the request of SRR, however an exception was made by OGC in this matter sin[c]e [VT] had only a couple of classes left for his degree and they wanted him to complete his degree requirements online.
When I spoke with Gabe, I asked him to revisit the matter with Toi Carter at OGC since he has no intention of following GW's requirements. (He's also the one suspected of ordering Italian food and sending it to Gabe immediately following his hearing/suspension from school). Greg Solomon investigated and Mark Levine (copied here) was looking into that one.
I'll get his GWorld for the BOLO. Suz[anne Combs] is working with Ricca in anticipation of her getting a TPO when she returns to DC next month.
*45
Indeed, as the office responsible for carrying out the University's disciplinary decisions, Slifka Dep. at 35:15-16 ("[T]he University investigates. We remediate."), OSRR regularly received complaints from unhappy students and parents. Pereira Dep. at 279:1-21 ("In the discipline system, you have to realize that everything is contentious..... [T]here's a lot of complaints that come into the discipline system. We are not the most popular people on campus, as you can imagine."). Despite this, discovery in this case uncovered no complaints aside from the two emails cited by plaintiff concerning the handling of Title IX matters by Slifka, who had worked at GW since 2006. Slifka Dep. at 23:13-15.36
Finally, the record shows that plaintiff herself expressed gratitude for Slifka's handling of the matter and advocated to him that the school not suspend VT. [redacted] (writing that Slifka "wanted my opinion. I had no idea that that was what the meeting would be. I really do appreciate it though."); Email of Apr. 16, 2013 from Pl. to Slifka, Pl.'s Ex. 50, at RFP 001338 ("I still think that the best thing for [VT], me, and the GW community would be to allow him to graduate, leave DC, and move on with his life.... I know it's a difficult decision. I really do believe there are other better options than suspension though. Thanks again for including me in this process."); Email of Apr. 24, 2013 from Pl. to Slifka, Pl.'s Ex. 26, at AA0000765 ("[W]ith the help of UCC and after my meeting with you, I was able to break it off fully again by the end of that weekend."); Email of May 13, 2013 from Pl. to Slifka, Def.'s Ex. 49, at AA0009306-07 ("I am glad GW has taken the situation between [VT] and me seriously, listened to my complaints, and included my input in the decision-making process.... Overall, I do feel like I am leaving this university with the situation having been addressed, so thank you.").
In sum, plaintiff has offered no evidence that the University was on notice that Slifka behaved in a manner that posed a risk to plaintiff.
CONCLUSION
For the reasons stated above, defendant's motion for summary judgment [Dkt.
*46# 63] will be GRANTED on all four counts, and plaintiff's cross-motion for summary judgment [Dkt. # 81] will be DENIED. A separate order will issue.
Related
Cite This Page — Counsel Stack
390 F. Supp. 3d 1, Counsel Stack Legal Research, https://law.counselstack.com/opinion/prasad-v-george-wash-univ-cadc-2019.