UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
REGINALD LEAMON ROBINSON,
Plaintiff,
v. Case No. 1:18-cv-00518 (TNM)
HOWARD UNIVERSITY, INC. et al.,
Defendants.
MEMORANDUM OPINION
This is a case about a professor’s poor choices and the disciplinary actions that followed.
Reginald Robinson is a tenured law professor at Howard University. During a lecture on agency
law, he distributed a quiz to his class. One of the quiz questions described in graphic detail types
of body waxes and the way aestheticians perform them. Mr. Robinson called on two female
students to discuss their answers to the question. They later reported that the exchange made
them feel uncomfortable and that at least one other student had left the classroom. After
investigating, University officials determined that the question was indeed inappropriate and
issued Mr. Robinson a confidential letter of reprimand. He was also required to participate in
sensitivity training, to submit future quiz and exam questions to the Dean’s Office for approval,
and to have a few of his future lectures monitored.
Impenitent, Mr. Robinson sued the University and various University officials. He
alleges breach of contract, bad faith, violations Title IX of the Education Amendments Act of
1972 (“Title IX”), sex discrimination, intentional infliction of emotional distress, and other
claims. The Court will dismiss some of these allegations for failure to state a claim. Because the
Defendants are entitled to judgment as a matter of law, and because they have shown that there is no genuine dispute as to any material fact, the Court will grant the Defendants summary
judgment on the remainder of Mr. Robinson’s claims.
I.
In the fall of 2015, Mr. Robinson taught a course called “Agency, Partnerships, and Other
Unincorporated Business Associations.” Am. Compl. 13, ECF No. 19. To test students’
understanding of the concepts covered, he often used in-class quizzes. Id. “Meaningful
participation” in these evaluations “require[d] students to reveal their choices and to defend those
choices based on the legal principles and relevant/material facts.” Id. at 13-14. The relevant part
of the quiz question at issue said:
Among other services, P offered Brazilian and bikini waxes – sometimes called “Sphynx,” bare waxing, or Hollywood waxing. . . . T looked confused, and so A explained that a Full Brazilian (“FB”) would render T hairless from belly button to buttocks, and a FB required [that] T would be naked from the waist down. A FB required A to touch T’s body and to adjust T’s body so that A could access every follicle of pubic hair. Next, A explained a Modified Brazilians [sic] (“MB”). A MB left a thin strip of hair at the top of T’s genitalia, viz., a “landing strip.” T opted for FB. A again told T that A would have to touch T’s genitals to complete the waxing. T agreed, and T signed the service contract and initialed the space for acknowledging A’s information. T got undressed in a private salon, where T also drank hot herbal tea. At A’s behest, T, w [sic] who was waist down naked, got on the waxing table. Once on the table, with instrumental tones wafting, T drifted into light sleep; A completed the FB. Upon awaking, T felt physically uncomfortable, asking A if A had touched T improperly. . . . [W]ill the court find in favor of T?
Am. Compl. Ex. 9, ECF No. 13 at 162-163. 1
Mr. Robinson called on a female student who suggested that “T would not sleep” during
the sort of procedure described. Am. Compl. Ex. 25, ECF No. 13 at 208. The professor pressed
1 Mr. Robinson submitted an original Complaint and two versions of the First Amended Complaint. See ECF Nos. 1, 13, and 19. Some exhibits referenced in the operative complaint were only included in one of the document’s prior versions. Citations to these exhibits include a docket number identifying the location of the exhibit where appropriate.
2 her to answer the question, as he “still wanted to know what choice she had made.” Id. He also
sought an answer to the hypothetical from a second female student, before moving on to the
remainder of his lecture. Id. at 208-209.
The two students filed complaints against him with the University. Am. Compl. 3.
Based on their allegations, Candi Smiley, the University’s Deputy Title IX Coordinator, issued
Mr. Robinson a Notice of Complaint. Compl. Ex. 10a, ECF No. 1 at 188. It said that the
University’s Title IX Office would investigate his conduct as required by federal law. Id. It
specified that Mr. Robinson was alleged to have engaged in “acts of sexual harassment” and
“acts of gender-based discrimination” in violation of the University’s Title IX Policy. Id. And it
explained that the “charges will be ‘sustained’ if it is found that the important facts contained in
an allegation are more likely true than not and that those facts violate one or more of” the
University’s Title IX Policy standards. Id. at 189 (emphasis in original).
The Notice also described Mr. Robinson’s rights and the decision-making process. He
had the right to submit a written response to the charges against him, to verbally present his
position to the Deputy Title IX Coordinator, and to retain counsel for any interviews with the
University. Id. at 190. The letter warned Mr. Robinson that the “decision of the Title IX
Decisional Authority is the final administrative action of the University and is not subject to
appeal.” Id. at 189-90. The “Decisional Authority” is “the person or persons who will review
the final Report of Investigation” prepared by the Deputy Title IX Coordinator. Id. at 189.
After completing her investigation, Ms. Smiley issued a Report of Investigation and
Findings. See Defs.’ Mot. to Dismiss or in the Alternative, Mot. for Summ. J. Ex. 1, ECF No. 20
(“Defs.’ Mot.”). 2 The Report concluded that “there is sufficient evidence to determine Professor
2 Though he did not include it as an exhibit, Mr. Robinson refers to Ms. Smiley’s Report in his Amended Complaint. See, e.g., Am. Compl. 28 (“See Smiley’s Report of Investigation and Findings of Complaint
3 Reginald Robinson committed acts of Sexual Harassment in violation of the Title IX Policy.” Id.
at 3. Ms. Smiley found insufficient evidence to sustain the charge of gender discrimination. Id.
The Report identified the University’s Provost, Anthony Wutoh, as the Title IX
Decisional Authority. Id. at 12. Upon completing his review, Mr. Wutoh issued a Notice of
Findings. It informed Mr. Robinson that the University agreed with the Report’s conclusions,
and that he would therefore be subject to disciplinary action. Compl. Ex. 24, ECF No. 1-1 at 47-
48. A confidential letter detailing his conduct, the actions taken, and the possible punishments
for future violations of the Title IX Policy was “placed in his file.” Id.
Mr. Robinson appealed this decision in a letter to Mr. Wutoh. Am. Compl. 24. In
response, the Provost explained that, “[i]n accordance with the Howard University Title IX
Policy, I serve as the . . . Title IX Decisional Authority. As with all cases, I carefully reviewed
the recommendation from the Title IX Office before rendering a decision in this matter. The
decision reached . . . is final, and is not subject to reconsideration or appeal.” Am. Compl. Ex.
13, ECF No. 13 at 196.
Dissatisfied, Mr. Robinson pursued several strategies to force a reversal of the decision.
He sent “his documents to a [sic] FIRE,” a nonprofit organization he believed could help him
“end the sex discrimination he faced.” Am. Compl. 25. He appealed the Provost’s decision to
the University’s Faculty Grievance Commission. Id. And when these efforts failed, Mr.
Robinson filed a gender discrimination claim against the University with the U.S. Equal
Employment Opportunity Commission (the “EEOC”). See Dismissal and Notice of Rights,
Against Professor Reginald L. Robinson . . . .”). The Court considered the Report’s full contents for two reasons. First, Mr. Robinson partially incorporated it into the Amended Complaint by reference. Second, for the reasons discussed in Section III, the Court treated the Defendants’ Motion to Dismiss as one for summary judgment under Federal Rule of Civil Procedure 12(d).
4 Compl. Ex. 31, ECF No. 1-1 at 65. The EEOC dismissed his complaint, as it was “unable to
conclude that the information obtained establishes violations of the [applicable] statutes.” Id.
Mr. Robinson then filed this case. He accuses the University, Mr. Wutoh, Ms. Smiley,
and Title IX Coordinator Vanessa Love of “knowingly fraudulent,” “deliberately deceptive,” and
“arbitrary and capricious” conduct. Am. Compl. 1, 3. The operative complaint features several
claims, including:
• Breach of contract and the implied duty of good faith and fair dealing;
• Erroneous outcome, deliberate indifference, and unlawful retaliation in violation of
Title IX;
• Sex discrimination in violation of Title VII of the Civil Rights Act of 1964;
• Intentional and negligent infliction of emotional distress;
• Negligence; and
• A request for declaratory and injunctive relief styled as a claim.
The Defendants maintain that the actions taken by the University complied with its Title IX
Policy and all relevant laws. Thus, they moved to dismiss or, based on the extra-pleadings
evidence before the Court, for summary judgment. See Defs.’ Mot. at 9 n.3.
II.
Defendants may move to dismiss a complaint when it “fail[s] to state a claim upon which
relief can be granted.” Fed. R. Civ. P. 12(b)(6). A valid complaint must contain factual
allegations that, if true, “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). Mere “labels and conclusions” or “naked assertion[s]
devoid of further factual enhancement” are insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678
5 (2009) (quotations omitted). Rather, “[a] claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id.
In evaluating a motion to dismiss, the Court must construe the complaint in the light
most favorable to the plaintiff and accept as true all reasonable factual inferences drawn from
well-pleaded allegations. In re United Mine Workers of Am. Emp. Benefit Plans Litig., 854 F.
Supp. 914, 915 (D.D.C. 1994). The Court need not, however, accept legal conclusions or mere
conclusory statements as true. Iqbal, 556 U.S. at 678. Evaluating a motion to dismiss is a
“context-specific task that requires the reviewing court to draw on its judicial experience and
common sense.” Id. at 679. It “may consider only the facts alleged in the complaint, any
documents either attached to or incorporated in the complaint and matters of which [the court]
may take judicial notice.” EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C.
Cir. 1997).
If “matters outside the pleadings are presented to and not excluded by the court,” a
motion to dismiss “must be treated as one for summary judgment,” and the “parties must be
given a reasonable opportunity to present all the material that is pertinent to the motion.” Fed. R.
Civ. P. 12(d). The decision to covert a motion to dismiss into a motion for summary judgment is
“committed to the sound discretion of the trial court.” Flynn v. Tiede-Zoeller, Inc., 412 F. Supp.
2d 46, 50 (D.D.C. 2006).
To prevail on a motion for summary judgment, a movant must show 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); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986).
A factual dispute is material if it could alter the outcome of the suit under the substantive
6 governing law. Anderson, 477 U.S. at 248. A dispute about a material fact is genuine “if the
evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. “[A]
party seeking summary judgment always 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,
477 U.S. 317, 323 (1986). Once the movant makes this showing, the non-moving party bears the
burden of setting forth “specific facts showing that there is a genuine issue for trial.” Anderson,
477 U.S. at 250.
III.
Before addressing the substance of Mr. Robinson’s claims, two preliminary matters
warrant brief discussion. First, the parties disagree on whether to treat Mr. Robinson as a pro se
litigant. He has described himself as a lawyer, a law professor, and “an adept legal academic”
who “knows the legal system.” Pl.’s Rule 6(b) Mot., ECF No. 26 at 12-13. Pointing to these
statements, the Defendants argue that he is “not entitled to the leeway sometimes granted to pro
se litigants.” Defs.’ Mem. in Opp. to Pl.’s Mot. to Delay Resp., ECF No. 31 at 1 n.1. Mr.
Robinson disagrees, citing a definition of “pro se” from Black’s Law Dictionary (“one
proceeding for himself and on their own behalf, in person”) and cases in which the pleadings of
attorneys appearing pro se were granted liberal construction. See Pl.’s Rep. in Supp. of His Rule
56(d) Mot., ECF No. 33 at 1 n.1 (“Pl.’s Rule 56(d) Reply”).
Self-represented lawyers are “not automatically subject to the very liberal standards
afforded to a non-attorney pro se plaintiff because an attorney is presumed to have a knowledge
of the legal system and needs less protections from the court.” Richards v. Duke University, 480
7 F. Supp. 2d 222, 234 (D.D.C. 2007). Indeed, some circuits and courts of this District have held
that lawyers are not entitled to any special protection when they appear pro se. See, e.g.,
Harbulak v. Suffolk County, 654 F.2d 194, 198 (2d Cir. 1981) (noting that the plaintiff “is a
lawyer and, therefore, he cannot claim the special consideration which the courts customarily
grant to pro se parties”); Klayman v. Zuckerberg, 910 F. Supp. 2d 314, 317 (D.D.C. 2012)
(denying an attorney appearing pro se special consideration).
But the D.C. Circuit has not conclusively resolved the issue. See Klayman v. Zuckerberg,
753 F.3d 1354, 1357 (D.C. Cir. 2014) (“This Court has not yet decided, however, whether that
rule applies when the pro se plaintiff is a practicing lawyer . . . [and we] need not resolve that
question here”). And though Mr. Robinson’s use of Black’s Law perhaps exemplifies his legal
sophistication, the Court has reviewed his pleadings under “less stringent standards than formal
pleadings drafted by lawyers.” Prunte v. Universal Music Group, Inc., 499 F. Supp. 2d 15, 21
(D.D.C. 2010). After all, it does not appear Mr. Robinson is barred in the District, and the gap
between the theoretical world of legal academia and the actual practice of law raises questions
about the equity of treating Mr. Robinson as a true practitioner.
Second, Mr. Robinson contends that consideration of the Defendants’ request for
summary judgment is premature. See Pl.’s Rule 56(d) Reply at 2. He seeks “the opportunity for
discovery [that] would be essential to every claims [sic] against defendants.” Id. at 8. He also
suggests that Ms. Smiley’s Report of Investigation and Findings is “not materially relevant” to
his claims. Id. The Court disagrees on both counts.
A reviewing court should treat a motion to dismiss as one for summary judgment “if
extra-pleading evidence is comprehensive and will enable a rational determination of a summary
judgment motion.” Alston v. Johnson, 208 F. Supp. 3d 293, 298 (D.D.C. 2016) (cleaned up).
8 There is “no bright-line threshold for conversion under Rule 12(d).” Ryan-White v. Blank, 922
F. Supp. 2d 19, 23 (D.D.C. 2013). The “touchstone is fairness and whether consideration of
summary judgment is appropriate, in light of the nature of the extra-pleading material submitted,
the parties’ access to sources of proof, and the parties’ concomitant opportunity to present
evidence in support or opposition to summary judgment.” Id.
Here, treating the Defendants’ motion as one for summary judgment is appropriate for
two reasons. First, as discussed below, many of his claims fail under both the Rule 12(b)(6)
dismissal standard and the Rule 56 summary judgment standard. Second, both parties have
submitted and responded to ample documentary evidence allowing the Court to carefully
evaluate Mr. Robinson’s claims.
His initial Complaint featured 34 exhibits and was 276 pages long. See Compl, ECF No.
1. Most of these exhibits are incorporated into his First Amended Complaint. They include
dozens of pages of his correspondence with the relevant University officials, his various appeals
and legal arguments, the relevant excerpts from the University’s Faculty Handbook and Title IX
Policy, and affidavits in support of his character and claims. See id. Though his pleadings did
not include Ms. Smiley’s Report, the Amended Complaint and his many later filings show that
Mr. Robinson has received, considered, and made arguments about the weight the Court should
accord it. See, e.g., Am. Compl. 28 (noting that the complaints against him as summarized in the
Report “never alleged that Plaintiff had made unwelcomed sexual advances, requested sexual
favors, and engaged in words or other physical conduct of a sexual nature”); Pl.’s Rule 56(d)
Reply at 8 (suggesting reasons why the Report is immaterial to his claims).
Both parties also have “submitted exhibits in support and opposition to the alternative
motion for summary judgment.” Ramsey v. Moniz, 75 F. Supp. 3d 29, 40 (D.D.C. 2014). While
9 Mr. Robinson requested additional discovery, he failed to explain how the new facts sought “are
necessary to the litigation.” Convertino v. U.S. Dep’t of Justice, 684 F.3d 93, 99 (D.C. Cir.
2012). Under Federal Rule of Civil Procedure 56(d), a party seeking more discovery before
summary judgment must show that “it cannot present facts essential to justify its opposition” to
the movant’s motion. Fed. R. Civ. P. 56(d). The party “may not rely on speculation that
discovery will produce material evidence.” Harrison v. Office of the Architect of the Capitol,
281 F.R.D. 49, 52 (D.D.C. 2012). Rather, he must “adduce ‘support for the proposition that
discovery would have produced the evidence [he] anticipated.’” Id. (quoting Messina v.
Krakower, 439 F.3d 755, 763 n.6 (D.C. Cir. 2006)).
Mr. Robinson failed to meet these requirements. He seeks documents about the
“unpublished, unknown, and unofficial evaluative tools” that the Title IX Office allegedly used
to investigate the claims against him. Rule 56(d) Declaration, ECF No. 29-2 at 4-5. He also
requests all documents relating to the employment history of and training received by the
University’s Title IX Office personnel. Id. at 3-4. And he demands that the Defendants produce
every investigative report about “each complaint” Ms. Smiley received about potential Title IX
violations at the University. Id. at 6.
But he offers only “conclusory assertion[s] without any supporting facts to justify the
proposition that the discovery sought will produce” evidence of improper motives or malicious
conduct by the people who investigated him. Messina, 439 F.3d at 762. In short, the extensive
briefing and exhibits here have established a robust evidentiary record, and the Court can fairly
consider the Defendants’ motion as one for summary judgment. 3 It will therefore deny Mr.
Robinson’s request for additional discovery.
3 The Court also notes that Mr. Robinson filed two motions to “Delay Response to [the Defendants’] Motion to Dismiss or in the Alternative Motion for Summary Judgment. See ECF Nos. 22, 29. The
10 IV.
Central to each of Mr. Robinson’s claims is his belief that the University mishandled the
investigation into the offending Fall 2015 quiz and that University officials punished him based
on impermissible motivations. But because he offers no more than mere speculation in support
of these beliefs, his claims must be denied.
A.
Mr. Robinson alleges that the University breached both its employment contract with him
and the implied duty of good faith and fair dealing. 4 Am. Compl. 65. He contends that the
University’s Title IX Policy is incorporated into the contract and that the Defendants’ alleged
violations of the Policy therefore breached that agreement. Id. at 64-67. The Defendants believe
that the Policy is a standalone document and that they did not violate any of its relevant terms.
Defs.’ Mot. at 14-20. Relying on the contents of the Title IX Report prepared by Ms. Smiley, the
Court finds that the University did not breach the contract or its implied duty of good faith and
Court denied Mr. Robinson’s first motion, as it failed to comply with the Rule 56(d) requirements articulated by Convertino, 684 F.3d at 99-100. See September 24, 2018 Minute Order. The Court explained that Mr. Robinson did not state with “sufficient particularity why additional discovery is necessary and why the nonmovant cannot produce the facts essential to its opposition to the motion for summary judgment.” Id.
By filing his second motion, Mr. Robinson asked the Court to reconsider its prior denial. According to its Standing Order, the Court typically “will not entertain” motions for reconsideration that feature “arguments which should have been previously raised, but are being raised for the first time.” ECF No. 2 at 7 (citing Nat’l Trust v. Dep’t of State, 834 F. Supp. 453, 455 (D.D.C. 1995)). Mr. Robinson was directed to read and comply with the Standing Order many times. See, e.g., ECF No. 2; Court’s June 7, 2018 Minute Order; Court’s September 24, 2018 Minute Order. While his noncompliance with the Standing Order presents alternative grounds for denying his second Rule 56(d) Motion, the Court considered the merits of his arguments given his status as a pro se litigant. 4 The Court has federal question jurisdiction over Mr. Robinson’s claims brought under Title IX and under Title VII of the Civil Rights Act. 28 U.S.C. § 1331. It has supplemental jurisdiction over his contract and tort claims. 28 U.S.C. § 1367.
11 fair dealing. It will thus grant summary judgment for the Defendants on this count.
A successful breach of contract claim requires that Mr. Robinson “establish (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 breach.” Francis v. Rehman, 110 A.3d 615, 620 (D.C.
2015). In the District of Columbia, “all contracts contain an implied duty of good faith and fair
dealing.” Murray v. Wells Fargo Home Mortg., 953 A.2d 308, 321 (D.C. 2008). This duty
“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.” Id. (cleaned up). The duty is
breached if a party “evades the spirit of the contract” or “willfully renders imperfect
performance.” Id.
To begin with, the Policy’s relationship to the University’s employment contracts is
unclear. Mr. Robinson began working for the University in 1994, and he relies on the 1993
Faculty Handbook in support of his argument. See Am. Compl. 10. It notes that “Sections 2 and
3 of this handbook . . . are incorporated into the individual contract of employment of each
faculty member, and they are subject to change by the Board of Trustees as conditions require.”
Compl. Ex. 18, ECF No. 1-1 at 24. Section 2.2.1.2 of the Handbook discusses sexual
harassment. Id. at 23. It states that:
It is the policy of Howard University to maintain the university community as a place of work and study for staff, faculty, and students free of sexual harassment and all forms of sexual intimidation and exploitation. The entire text of the policy and procedures is set forth in Appendix B. All faculty members as well as staff and students are subject to this policy.
Id. (emphasis added). Appendix B describes the University’s “Sexual Harassment Policy and
Procedures” approved by the Board of Trustees in 1989. See Defs.’ Mot. Ex. 3, ECF No. 20-3 at
106.
12 The Defendants correctly assert that the University publishes a separate policy called the
“Title IX (Student) Policy on Prohibited Sexual Harassment and Gender-Based Discrimination in
Education Programs and Activities.” Defs.’ Mot. at 15; Ex. 4, ECF No. 20-4 at 2. This
document’s original “Effective Date” is listed as June 5, 1999, suggesting that it is distinct from
the 1989 statement on sexual harassment. Id.
But evaluating the allegations in the light most favorable to Mr. Robinson, the Court
assumes that the University intended the operative version of its Title IX Policy to be
incorporated into faculty’s employment contracts. The language of the two policies is
substantially similar in many important respects. For instance, both define and provide examples
of sexual harassment. See Defs.’ Mot. Ex. 3 at 107; Defs.’ Mot. Ex. 4 at 8. Thus, the University
could have breached its contract with Mr. Robinson if it violated its Title IX Policy.
No such violation occurred. Mr. Robinson claims that the University “refused to give
Plaintiff proper, meaningful notice of the fact specific and spurious allegations made by the two
complaining female law students.” Am. Compl. 66. The Policy includes a section titled “Notice
to the Respondent.” Compl. Ex. 10b, ECF No. 1-1 at 5. It requires that, when the Title IX
Office receives a complaint, the “Respondent shall be informed in writing of the complaint and
the allegations made against them . . . [and] will then have an opportunity to submit a written
response to the allegations in the complaint.” Id.
The four-page Notice of Complaint Ms. Smiley issued Mr. Robinson satisfied this
requirement. It listed the allegations against him, the applicable Policy standards and
investigative procedures, Mr. Robinson’s rights including his right to respond, and the
complainants’ rights to confidentiality. See Compl. Ex. 10a, ECF No. 1 at 188-191.
13 Mr. Robinson acknowledged receipt of this Notice, argued that it was deficient, denied
the allegations against him, and asked for more details about the complaints. See Compl. Ex. 16,
ECF. No. 1-1 at 15-18. Consistent with the Title IX Policy and the Notice of Complaint, Ms.
Smiley scheduled an oral interview with Mr. Robinson. See Compl. Ex. 20, ECF No. 1-1 at 39.
After that interview, Mr. Robinson wrote that he was “finally glad to know the
underlying circumstances behind these allegations.” Id. In an email to Ms. Smiley, he defended
his quiz question by asking her to visit a website depicting men’s underwear and told her
“[y]ou’ll see that men wear bikini underwear, too.” Id. He also suggested that he would “send
[her] additional information, so that [she] can appreciate the context from which [he] was
working” when he wrote the question. Id. Over the next few days, he sent Ms. Smiley several
emails. See Compl. Ex. 21-23, ECF No. 1-1 at 40-46. These multi-page documents cited legal
provisions, relevant cases, and the University’s Title IX Policy to argue that Mr. Robinson had
done nothing wrong. Id.
Ms. Smiley’s Report noted that she reviewed the electronic communications sent by Mr.
Robinson. Defs.’ Mot. Ex. 1 at 2. The Report included as exhibits the emails and supporting
documents that Mr. Robinson sent her. See id. at 192-201. So, based on the Notice of
Complaint, his correspondence with Ms. Smiley, and the many arguments he raised in his
defense, Mr. Robinson had ample notice of and opportunity to respond to the claims made
against him.
Next, Mr. Robinson argues that the findings in Ms. Smiley’s Report were based on the
application of a “subjective experience test, which gave undue evidentiary weight and
institutional imprimatur to the female victims’ narratives . . . .” Am. Compl. 66. He also
contends that the Report “completely lacked the required findings of material fact on the legal
14 predicate for sexual harassment.” Id. at 67. These assertions fall flat. The Report employed a
preponderance of the evidence standard and is replete with supporting factual findings. See
Defs.’ Mot. Ex. 1 at 3-10.
Ms. Smiley concluded, for example, that Professor Robinson “exhibited a past pattern of
behavior that makes it more likely than not[] that he has created hypotheticals of a sexual nature
that made students uncomfortable.” Id. at 8. From 1998 – 2002, Mr. Robinson sent several
“emails of explicit sexual jokes” to University faculty members. Later, “a faculty member
alleged Professor Robinson made inappropriate comments to her about socializing with him.”
Id. at 9. And the Associate Provost for Faculty Development reported that “Professor
Robinson’s exams were always among the most challenging to review . . . we sent them back to
him to change hypotheticals that we thought were too . . . I don’t want to say sexual [sic] explicit
but they’re just insensitive . . . to women.” Id. at 22. Thus, far from relying solely on the
subjective testimony of the complainants, Ms. Smiley considered objective contextual evidence
in determining that Mr. Robinson’s question constituted unwelcome conduct of a sexual nature.
Id. at 3.
Mr. Robinson also believes that the Policy mandated that the University complete its
investigation within “60 calendar days” of receiving the complaint. Am. Compl. 66. Not so.
True, the Policy states that the Title IX Officer “will have 60 calendar days to conduct an
impartial, thorough and timely investigation of all complaints alleging harassment or
discrimination under this policy.” Compl. Ex. 10b, ECF No. 1-1 at 6. But it also allows the
Officer to take additional time, requiring only that the she “notify the Complainant, in writing,
that additional time is needed for completion of the investigation.” Id. (emphasis added). There
is no evidence, and Mr. Robinson does not allege, that such written notice was not provided to
15 the students who lodged the complaint. In any event, any breach of this requirement would
implicate the complainants’ rights, not his.
In sum, the University did not breach Mr. Robinson’s contract or the implied duty of
good faith and fair dealing. The Defendants’ investigation of his conduct complied with the
University’s Title IX Policy. By all available indicia, the fact-finding process appears to have
been impartial, thorough, and reasonable. So the Court will grant summary judgment for the
Defendants on Mr. Robinson’s contract claims.
B.
In an audacious move, Mr. Robinson next argues that he, rather than his students, is the
victim of a Title IX violation. See Am. Compl. 69-76. He suggests that, by “erroneously finding
[against] and disciplining Plaintiff” the University violated Title IX because its actions were
motivated by the “anti-male bias” of Ms. Smiley, the Title IX Coordinator, and Mr. Wutoh. Id.
at 73. This claim fails under the Rule 12(b)(6) dismissal standard. In the alternative, relying on
Ms. Smiley’s Title IX Report, the Court finds that, even if Mr. Robinson has sufficiently alleged
a Title IX claim, the Defendants are entitled to judgment as a matter of law.
Title IX of the Education Amendments Act of 1972 provides that “[n]o person in the
United States shall, on the basis of sex, be excluded from participation in, be denied benefits of,
or be subjected to discrimination under any education program receiving Federal financial
assistance.” 20 U.S.C. § 1681(a). Because the University receives federal funding, it is subject
to Title IX. Am. Compl. 8.
Some courts have recognized an “erroneous outcome” theory of Title IX liability. See,
e.g. Yusuf v. Vassar College, 35 F.3d 709, 714 (2d Cir. 1994) (“[W]e may safely say that Title IX
bars the imposition of university discipline where gender is a motivating factor in the decision to
16 discipline”). To succeed under this theory, Mr. Robinson must show that “he was innocent and
wrongfully found responsible of an offense due to gender bias.” Doe v. George Washington
Univ., 305 F. Supp. 3d 126, 133 (D.D.C. 2018) (citing Yusuf, 35 F.3d at 715). He must allege
“particular facts sufficient to cast some articulable doubt on the outcome of the proceeding” and
establish that “gender bias was a motivating factor behind the erroneous finding.” Id.
“[A]llegations of a procedurally or otherwise flawed proceeding that has led to an adverse and
erroneous outcome combined with a conclusory allegation of gender discrimination is not
sufficient to survive a motion to dismiss.” Yusuf, 35 F.3d at 715.
Mr. Robinson alleges that the University “gave undue evidentiary weight” to the
“spurious allegations” of the complaining female students. Am. Compl. 72. He claims that the
University “knows that agents and employees in the Title IX Office have an anti-male bias” and
that this bias “informed” the decision to reprimand him. Id. at 72-73. And he believes that
“[d]ue to [the] harmful, near unforgiving social climate against males who have been found to be
sexual harassers, of which Howard is aware, Plaintiff is reasonably certain to continue to suffer”
harm because of the Defendants’ wrongful decision. Id. at 75.
But he offers little beyond these conclusory statements. He does not allege “statements
by members of the disciplinary tribunal, statements by pertinent university officials, or patterns
of decision-making” that might “show the influence of gender” or “reflect[] bias by members of
the tribunal.” Yusuf, 35 F.3d at 715. In fact, the available evidence shows that the University
applied its facially gender-neutral Title IX policy in a reasonable manner. Ms. Smiley’s Report,
for instance, noted that Mr. Robinson’s quiz question “creates an uncomfortable situation for any
male or female student,” as it may require students “to disclose intimate details” about their
personal grooming habits. Defs.’ Mot. Ex. 1 at 6. Neither the Report nor the University’s later
17 correspondence with Mr. Robinson show that the University’s Title IX staff harbored anti-male
biases. Mr. Robinson’s claim therefore fails.
Similarly, his contention that the University acted with “deliberate indifference” in
violation of Title IX fails to state a claim. To establish liability under this theory, Mr. Robinson
must show that a “school administrator with authority to take corrective action responded to
harassment with deliberate indifference.” Fitzgerald v. Barnstable School Comm., 555 U.S. 246,
257 (2009). The administrator’s response must be “clearly unreasonable in light of the known
circumstances,” and must be “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.” Wells v. Hense, 235 F. Supp. 3d 1, 7 (D.D.C. 2017) (cleaned up). Deliberate
indifference claims “are typically brought in cases where a school has ignored a victim’s
complaint of sexual harassment or assault.” Doe v. Brown University, 166 F. Supp. 3d 177, 191
(D.R.I. 2016).
Mr. Robinson alleges that the University was deliberately indifferent when it “refus[ed]
to remedy” its decision to reprimand him. Am. Compl. 76-77. He believes that the University
has shown “sex and gender deliberate indifference towards Plaintiff and/or other similarly
situated male students.” Am. Compl. 77. But again, Mr. Robinson offers little more than mere
speculation. “Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. In declining to change his
decision, for example, Mr. Wutoh noted he had “carefully reviewed the recommendation from
the Title IX Office,” and that per the University’s Title IX Policy, his decision was “final” and
“not subject to reconsideration or appeal.” Am. Compl. Ex. 13, ECF No. 13 at 196. His
response cannot reasonably be described as “objectively offensive.”
18 Mr. Robinson makes a third Title IX claim. It fares no better. He alleges that he
“suffered retaliation for protesting the sex discrimination that he suffered” at the hands of Ms.
Smiley and the Title IX Office. Am. Compl. 81. He believes that Mr. Wutoh “summarily
rejected Plaintiff’s appeal” to retaliate against him for sending the “entire record to a
disinterested, nonprofit, nonpartisan organization, i.e., FIRE.” Id. at 83.
To state a claim for retaliation, Mr. Robinson must establish that he “made a charge or
opposed a practice made unlawful” by Title IX, that the University “took a materially adverse
action” against him, and that the University “took the action because of [his] protected conduct.”
Cavalier v. Catholic Univ. of America, 306 F. Supp. 3d 9, 36 (D.D.C. 2018).
If the materially adverse action alleged is the reprimand Mr. Robinson received, he has
failed to state a claim, as the action was taken ten days before his decision to send his documents
to the nonprofit organization. See Am. Compl. 86, 83. And if the adverse action is Mr. Wutoh’s
rejection of Mr. Robinson’s “appeal,” the University’s Title IX Policy makes clear that “[o]nce
the Provost has rendered his or her decision, that decision is final and may not be appealed to any
other authority.” Compl. Ex. 10b, ECF No. 1-1 at 7. Thus, Mr. Robinson’s retaliation claim
must be dismissed, as he fails to sufficiently allege a materially adverse action taken because of
his protected conduct.
C.
Next, Mr. Robinson alleges that the University violated his civil rights. He contends that
he “has been the victim of unlawful discriminatory conduct in the work place through Howard’s
arbitrary, capricious, malicious, and negligent applications of its rules.” Am. Compl. 78. He
was, he claims, “subjected to disparate treatment and suffered adverse employment actions by
Howard on the basis of his sex” in violation of Title VII of the Civil Rights Act. Id. This claim
19 fails under the Rule 12(b)(6) dismissal standard.
The “two essential elements of a [Title VII] discrimination claim are that (i) the plaintiff
suffered an adverse employment action (ii) because of the plaintiff’s race, color, religion, sex,
national origin, age, or disability.” Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C. Cir.
2008). The D.C. Circuit has held that “formal criticisms or reprimands, without additional
disciplinary action such as a change in grade, salary, or other benefits, do not constitute adverse
employment actions.” Stewart v. Evans, 275 F.3d 1126, 1136 (D.C. Cir. 2002).
Because he received only a letter of reprimand without a demotion, reduction in salary, or
reduced benefits, Mr. Robinson has failed to sufficiently allege that he suffered an adverse
employment action. He suggests that, because of the University’s conduct, his “academic and
career opportunities, earning potential, and reputation have been severely harmed.” Am. Compl.
80.
But both the Notice of Findings and the Letter of Reprimand Mr. Robinson received were
marked “Confidential,” and Mr. Robinson does not allege that the University made its findings,
decision, or disciplinary measures public. See Compl. Ex. 24, 25, ECF No. 1-1 at 47-50. In
short, there are no colorable allegations of reputational harm. At least before he filed suit. If
anything, it is Mr. Robinson’s decision to make a federal case out of the confidential letter that
may harm his future career prospects. Put simply, a reprimand “that amounts to a mere
scolding” of the kind that Mr. Robinson received “does not rise to the level of adverse action.”
Nurriddin v. Goldin, 382 F. Supp. 2d 79, 94 (D.D.C. 2005). And he cannot manufacture
reputational harm by publicizing otherwise private matters. Thus, his Title VII claim fails. 5
5 The Defendants suggest that Mr. Robinson’s Title VII claim is also barred by the statute of limitations. See Defs.’ Mot. at 39. Title VII “requires that a person complaining of a violation file an administrative charge with the EEOC and allow the agency time to act on the charge.” Park v. Howard Univ., 71 F.3d
20 D.
Next, Mr. Robinson raises three tort claims, including intentional infliction of emotional
distress (IIED), negligent infliction of emotional distress (NIED), and ordinary negligence. See
Am. Compl. 85-97. These allegations fail under both the Rule 12(b)(6) and Rule 56 standards.
Turning first to his IIED claim, Mr. Robinson alleges that the Defendants’ “actions were
intentional, extreme, and outrageous during all matters. . . .” Am. Compl. 85. The University’s
Title IX investigation and findings were “done purposefully and intentionally to injure Plaintiff,
who was in fact injured, and to assure a result that found Plaintiff responsible for the alleged
sexual harassment of which he was wrongly accused.” Id. at 86. In short, Mr. Robinson believes
that the University knowingly made an example out of him to “quell the student and community
unrests related” to instances of campus sexual assault. Id. at 87.
A prima facie showing of IIED requires “(1) extreme and outrageous conduct on the part
of the defendant which (2) intentionally or recklessly (3) causes the plaintiff severe emotional
904, 907 (D.C. Cir. 1995). Plaintiffs then have 90 days upon receiving the EEOC’s decision to file a suit in federal court. Id.
Mr. Robinson filed a claim with EEOC that was dismissed on November 27, 2017. Compl. Ex. 31, ECF No. 1-1 at 65. The notice of this dismissal stated that his lawsuit “must be filed within 90 days of [his] receipt of this notice; or [his] right to sue based on this charge will be lost.” Id. He filed his first Complaint before the Court on February 26, 2018. See ECF No. 1. Assuming he received the EEOC notice shortly after November 27, the Complaint was timely filed against Mr. Wutoh, Ms. Smiley, and Ms. Love. But his original Complaint named the “Trustees of Howard University, Inc.” rather than “Howard University, Inc” as a Defendant. Id. And his First Amended Complaint was filed several months later. See ECF No. 13. The Defendants contend that the 90-day deadline must be strictly enforced, and that his claim was thus barred as applied to the University. Defs.’ Mot. at 39 (citing, among other cases, Smith v. Dalton, 971 F. Supp. 1, 2 (D.D.C. 1997)).
Typically, where “the complainant is at fault,” he is “not entitled to equitable tolling” of the EEOC deadline. Maggio v. Wisconsin Ave. Psychiatric Ctr., Inc., 795 F.3d 57, 60 (D.C. Cir. 2015). But because it finds that Mr. Robinson’s Title VII arguments fail as applied to all named defendants, the Court need not decide whether the “Trustees of Howard University” were a sufficient alter ego of the University itself.
21 distress.” Sere v. Group Hospitalization, Inc., 443 A.2d 33, 37 (D.C. 1982) (cleaned up). To
meet the first prong, the conduct must be “so outrageous in character, and so extreme in degree,
as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community.” Id. This is a high bar. The District of Columbia Court of
Appeals has found an IIED claim insufficient even though an employer allegedly “targeted [an
employee] for a sexual harassment investigation, manufactured evidence against him in order to
establish a false claim of sexual harassment, leaked information from the investigation to other
employees, and unjustifiably demoted him.” Kerrigan v. Britches of Georgetowne, Inc., 705
A.2d 624, 628 (D.C. 1997).
“[D]rawing all reasonable inferences in Mr. [Robinson’s] favor,” the facts are “less
egregious than those in Kerrigan.” North v. Catholic Univ. of America, 310 F. Supp. 3d 89, 95
(D.D.C. 2018). North is particularly instructive. In that case, a student alleged that university
personnel investigating allegations of sexual harassment against him were “not adequately
trained to conduct their fact-finding role.” Id. He also claimed that because of “the University’s
flawed process and failure to have or follow its own procedures, he was erroneously held
responsible for the offense.” Id. He argued that university administrators showed a “clear bias”
against him and were “openly hostile” to him. Still, this Court found that this was like the “type
of employer-employee conflict that does not, as a matter of law, rise to the level of outrageous
conduct.” Id.
The same conclusion applies here. Even if Mr. Robinson’s investigation were handled
poorly, Ms. Smiley improperly weighed the evidence against him, and he was denied a complete
opportunity to contest the allegations against him, he has still failed to sufficiently allege conduct
so outrageous and extreme as to go beyond all possible bounds of decency. And despite his
22 repeated claims of a pernicious, anti-male bias, Mr. Robinson offers no facts or allegations from
which the Court can reasonably infer such a motive. His IIED claim fails to clear the bar.
His NIED claim falls short, too. Under the District of Columbia’s laws, a plaintiff may
recover for NIED under either of two theories. First, the “well-established ‘zone of danger’ test
allows a plaintiff to recover ‘for mental distress if the defendant's actions caused the plaintiff to
be in danger of physical injury and if, as a result, the plaintiff feared for his own safety.’” Islar
v. Whole Foods Mkt. Grp., Inc., 217 F. Supp. 3d 261, 268 (D.D.C. 2016) (quoting Hedgepeth v.
Whitman Walker Clinic, 22 A.3d 789, 796 (D.C. 2011) (en banc)). Second, a plaintiff can
recover if there is a “special relationship” between the parties that “necessarily implicates the
plaintiff’s emotional well-being.” Id.
Mr. Robinson does not allege the existence of a zone of danger or any risk of physical
injury. And he has not alleged anything besides an “arm’s length, supervisor-employee
relationship” with Mr. Wutoh, the Title IX personnel, or other University officials. Id. Merely
alleging an employer-employee relationship “foreclose[es] any ‘special relationship’ liability.”
Id. Mr. Robinson therefore cannot recover on an NIED theory.
Mr. Robinson also believes that the University “breached its duty of care, good faith, and
fair dealings.” Am. Compl. 96. He suggests that the University negligently hired and supervised
Ms. Smiley. Id. at 95-96. He rehashes his arguments that the investigative process and resulting
decision were impermissibly based on the “subjective experience of the victims.” Id. at 96. And
he suggests that the University “intentionally, recklessly and/or negligently fail[ed] to conduct a
proper conflicts check to assure that Plaintiff’s appeal was decided by an unbiased investigator
other than by Smiley who was biased and conflicted.” Id. at 97.
His negligence claim suffers from the same fatal defect as the rest of his allegations. It is
23 based on unfounded speculation and conclusory statements. Negligent hiring or supervision, for
instance, requires a showing that “an employer 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.” Giles v.
Shell Oil Corp., 487 A.2d 610, 613 (D.C. 1985) (citation omitted).
Far from acting in a dangerous or incompetent manner, Ms. Smiley and Mr. Wutoh
appear to have followed the University’s Title IX Policy, relied on objective evidence in making
their decision, and afforded Mr. Robinson many opportunities to raise arguments in his favor.
Thus, Mr. Robinson has failed to sufficiently allege a negligence claim. And, even if Mr.
Robinson he has adequately stated claims for IIED, NIED, and negligence, Ms. Smiley’s Title IX
Report and the University’s actions discussed above show that neither she, Mr. Wutoh, nor other
University officials intentionally, recklessly, or negligently caused Mr. Robinson the emotional
distress he felt.
E.
Finally, Count 10 of the First Amended Complaint seeks declaratory and injunctive relief.
Am. Compl. 98. Mr. Robinson contends that his “career opportunities have been severely
damaged,” and he seeks a permanent injunction requiring the University “to eliminate the anti-
male bias and improper, unknown and unpublished processes and procedures” used by the Title
IX Office. “A request for declaratory judgment constitutes a form of relief, not a cause of
action.” Fitts v. Fed. Nat’l Mortg. Ass’n, 44 F. Supp. 2d 317, 330 (D.D.C. 1999). Because the
Court will dismiss or grant summary judgment to the Defendants on his preceding claims, Mr.
Robinson has stated no cause of action for which equitable relief may be granted.
24 V.
Professor Robinson used an inappropriate and sexually suggestive question during one of
his lectures. After some of his students reported the question, the University investigated and
reasonably decided to reprimand him, monitor some of his future lectures and test questions, and
require him to take sensitivity training. His disagreement with this decision does not provide
sufficient legal grounds for the many claims and allegations he has raised. The Defendants’
Motion to Dismiss or in the Alternative, Motion for Summary Judgment will be granted. The
Plaintiff’s Motion to Delay Response to the Defendants’ motion will be denied. A separate order
will issue.
2018.11.20 15:31:09 -05'00' Dated: November 20, 2018 TREVOR N. MCFADDEN, U.S.D.J.