UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA __________________________________ ) JOHN DOE, ) ) Plaintiff, ) ) v. ) Civil Action No. 18-553 (RMC) ) THE GEORGE WASHINGTON ) UNIVERSITY, ) ) Defendant. ) __________________________________ )

MEMORANDUM OPINION

As a sophomore at the George Washington University (GW), John Doe met a

young woman, Jane Roe, at a party who said that she wanted to have sex. They did. Two years

later, Jane Roe complained to GW that she had been sexually assaulted because she had

obviously been too drunk to consent. After a hearing before a panel convened by GW, Mr. Doe

was found responsible for sexual assault and suspended for one year. Mr. Doe appealed and was

rebuffed. He then sued GW in this Court for gender-based discrimination in violation of Title IX

and the D.C. Human Rights Act, as well as for breach of contract and negligence. The parties

have already navigated motions for preliminary injunction and partial summary judgment, as

well as a Court-mandated appeal before a GW appeals panel. The appeals panel having affirmed

the hearing panel’s decision, Mr. Doe has now filed an amended complaint. GW moves to

dismiss all claims. That motion will be granted in part and denied in part.

I. BACKGROUND

Twice now, the Court has stated the facts of this case. See Doe v. George

Washington Univ.,

(D.D.C. 2018) (Doe II); Doe v. George Washington

1 Univ.,

(D.D.C. 2018) (Doe I). However, because new evidence has come to

light since the last round of proceedings, an additional restatement is necessary.

A. GW and Title IX

First, some context. In the wake of the Department of Education’s 2011 “Dear

Colleague” letter, GW, like many other colleges and universities, has been working to address

sexual assaults on campus and comply with its obligations under Title IX,

et

seq. Second Am. Compl. (SAC) [Dkt. 51] ¶ 44. To describe just some of its struggles: In 2011,

the Department of Education’s Office of Civil Rights (OCR) opened an investigation into GW’s

handling of sexual assault claims after a female student filed a complaint, which investigation

was only closed after GW agreed to monitoring by OCR through the 2012-2013 and 2013-2014

school years.

. In October 2015, however, another female student filed her own

complaint, this time in federal court.

. That case received public attention and is

ongoing.

In April 2017, yet another female student, Aniqa Raihan, complained that GW

had mishandled her case and started a change.org petition for stricter disciplinary punishment of

students found responsible for sexual assault.

. In response, GW issued a statement

wherein it acknowledged that the “narrative emerging from the petition and related activities

suggests that GW has been reluctant or even unwilling to hold individuals accountable for acts of

sexual violence.”

; Message from University Administrators, GW Today (Apr. 21, 2017)

https://gwtoday.gwu.edu/message-university-administrators. GW insisted, however, that “the

narrative is not borne out by our record” and cited statistics from the 2015-2017 school years to

prove its point: of 16 formal complaints, 10 went before a hearing panel, and in all 10 cases the

accused student was found responsible and disciplined. SAC ¶ 53. This statement did not

placate Ms. Raihan; in dramatic fashion at graduation, she displayed a five-by-twelve-foot sign 2 that read “#GWProtectsRapists,” while the graduating class of the Women’s, Gender, and

Sexuality Studies Program held a banner with “IX” on it.

. This too received public

attention.

In August 2017, OCR opened another investigation into GW’s Title IX practices,

based on a third student’s complaint.

. That investigation was completed in July 2018.

However, Ms. Raihan filed her own complaint with OCR in September 2018, and GW

continues to receive negative Title IX publicity.

.

B. The Incident Between Mr. Doe and Ms. Roe

On the night of September 12, 2015, Mr. Doe, a sophomore at George

Washington University and a member of the school’s rugby team, attended a party at the rugby

house.

. At the time, Mr. Doe was a virgin and did not drink alcohol for religious

reasons.

As Mr. Doe recalls and alleges, he overheard Ms. Roe tell a friend at the party that

she wanted to have sex.

. He introduced himself to her; they talked; they kissed; and Ms.

Roe, after confirming with her roommate that their room was not available, asked if they could

have sex in Mr. Doe’s room.

. She then called an Uber for them and a third student who

needed a ride.

They did not speak during the Uber ride—Mr. Doe says that he was nervous

and that Ms. Roe was “quietly doing things on her phone” (not talking to anyone)—but when

they arrived at Mr. Doe’s place they reciprocated oral sex and had consensual intercourse.

. After they finished, they exchanged a few more words, then Ms. Roe left Mr. Doe’s

room.

. At no point in their interaction did Ms. Roe show signs of severe

intoxication, including slurring or stumbling.

.

3 Ms. Roe, who was a freshman in September 2015, recalls differently, 1 and on

October 30, 2017, she filed a formal complaint with GW alleging that she had been too drunk to

consent to sex and that Mr. Doe should have known it.

. Ms. Roe told GW that she

attended a pre-game party with friends, where she took multiple shots.

. The group

then took an Uber to the rugby house, where Ms. Roe drank more.

. Ms. Roe only

vaguely remembered speaking with Mr. Doe and did not remember calling or getting into an

Uber with him.

. Instead, she remembered waking up a short while later to Mr. Doe

having sexual intercourse with her, that she verbalized “no,” and that she tried to push him away

but was unable to.

. After Mr. Doe finished, Ms. Roe rushed out of bed and into her

clothes and ran down eight flights of stairs and one block back to her dorm.

. There she

found her roommate, A.C., and, going into the bathroom, “explained to her the details of what

had happened.”

GW initiated an investigation through which it conducted interviews and held a

hearing before a panel composed of another GW undergraduate student, a GW law student, and a

GW administrator whose title is “Director of Greek Life” (collectively, the Hearing Panel).

. These proceedings were conducted pursuant to GW’s Sexual Harassment and Sexual

Violence Policy (the Policy) and its Code of Student Conduct (the Code) that were in effect at

the time. 2 Three witnesses appeared before the Hearing Panel on behalf of Ms. Roe.

.

1 According to the complaint, Ms. Roe recounts the night’s events inconsistently across several statements and testimony. Because at this stage of litigation the Court must take Mr. Doe’s allegations as true, see Section II, infra, his account of the night, not hers, is relied upon. The critical facts of Ms. Roe’s story are inconsistent with Mr. Doe’s and credibility is not judged in this decision, so the details can be skipped. 2 Both documents are appended to Mr. Doe’s complaint. See Ex.1, First Am. Compl. (FAC), Sexual Harassment and Sexual Violence [Dkt. 45-1]; Ex.2, FAC, Code of Student Conduct [Dkt. 4 J.E. was the first witness and he testified both that he had been with Ms. Roe at the pre-game

party where he had seen her take a number of shots, and that she was slurring her words and

stumbling before the group left for the rugby house.

. The second witness, R.M.,

testified that Ms. Roe had appeared drunk at the rugby house, although he did not describe what

he meant.

. The third witness, E.E., testified that Ms. Roe had called her when she was

in the Uber with Mr. Doe, during which call Ms. Roe sounded “extremely intoxicated . . . and . . .

barely conscious.” 3

. Mr. Doe was his own and only witness. He denied that Ms. Roe

was obviously drunk and reported that his potential witness, Q.W., had spoken with Ms. Roe and

observed nothing out of the ordinary.

. However, Q.W. was studying abroad in 2017

and did not provide a statement to the Hearing Panel.

On January 23, 2018, GW informed Mr. Doe that the Hearing Panel had found

him responsible for sexually assaulting Ms. Roe.

. Specifically, it found that Ms. Roe

had been intoxicated to the point of incapacitation based on: (1) Ms. Roe’s own testimony

regarding her level of intoxication and lack of memory; (2) E.E.’s testimony that Ms. Roe

sounded incoherent and barely conscious on the phone; (3) the fact that Mr. Doe and Ms. Roe

had exchanged few words during their Uber ride together; (4) the fact that the rugby team had

encouraged women at the party to drink heavily; and (5) Mr. Doe’s predatory behavior, i.e.,

approaching Ms. Roe after overhearing her tell her friend that she wanted to have sex.

;

Ex. 12, Mot. for Summ. J., University Hearing Board Adjudication Report (hereinafter Hearing

45-2]. The Court understands that the Sexual Harassment and Sexual Violence Policy has since been updated. 3 Again, Mr. Doe’s complaint notes several inconsistencies in E.E.’s statements. Those inconsistencies are irrelevant at this time and do not warrant further detail.

5 Decision) [Dkt. 27-15] at 5-6. 4 The Hearing Panel also found that Mr. Doe should have known

that Ms. Roe was too incapacitated to consent based on testimony that she had been stumbling

and slurring words before the rugby party, been drunk at the rugby party, been slurring her words

on the phone during the Uber ride, and had otherwise spoken very little with Mr. Doe during the

Uber ride.

. Mr. Doe was suspended for one year, delaying conferral of his

undergraduate degree from spring 2018 until January 2019 even though all of his course work

was completed. SAC ¶¶ 167, 284.

Since the decision of the Hearing Panel, additional evidence has become available

to Mr. Doe. First, Mr. Doe subpoenaed E.E.’s phone records in this litigation; they show that she

received no calls from Ms. Roe on the night of the incident.

. Mr. Doe also subpoenaed

Ms. Roe’s phone records; they show that the only call Ms. Roe made during the Uber ride was a

one-minute call to her roommate A.C.

. Second, Mr. Doe submitted a report from

toxicologist Harry Milman, Ph.D., estimating that, in his opinion, Ms. Roe would have had a

blood alcohol content (BAC) between 0.26 and 0.37, based on varying accounts of the number of

drinks she had.

. Dr. Milman stated that “even at the low end of the range” it was

“extremely unlikely that she could have dressed herself, run down eight flights of stairs, run one

block to her home, and was able to explain to her roommate that she had allegedly been

assaulted.” Harry A. Milman, Intoxication Opinion [Dkt. 28-4] at 5. Third, Q.W. submitted a

statement indicating that he had a “normal, lucid conversation” with Ms. Roe and her friends at

the rugby party in the presence of Mr. Doe, approximately thirty minutes before the Mr. Doe and

Ms. Roe left in the Uber together. SAC ¶ 69. Fourth, Mr. Doe obtained texts between A.C. and

4 Decisions by GW’s disciplinary panels, as well as other evidentiary documents, are incorporated by reference into the Second Amended Complaint. Cf. Abhe & Svodboda, Inc., v. Chao,

(D.C. Cir. 2007).

6 Ms. Roe indicating that A.C. had no memory of calling Ms. Roe or hearing her describe her

assault on the night of the incident. Id. ¶ 153. Mr. Doe appealed the Hearing Panel’s decision

with this new evidence.

A GW Appeals Panel considered Mr. Doe’s appeal in September 2018. 5 After

considering the new evidence provided by Mr. Doe, the Hearing Panel’s decision and the record

before it, and additional statements from Ms. Roe responding to Mr. Doe’s appeal, the Appeals

Panel issued a terse, two-page letter rejecting Mr. Doe’s appeal. SAC ¶¶ 213-15; Ex. C, Mot. to

Dismiss Pl.’s Am. Compl. (Mot. to Dismiss) [Dkt. 46], Letter from Christy Anthony, Director,

Office of Student Rights and Responsibilities, to John Doe (Sept. 18, 2018) (hereinafter Appeals

Decision) [Dkt. 46-5]. For the third time, Mr. Doe turned to this Court, claiming breach of

contract, breach of the duty of good faith and fair dealing, disparate treatment under Title IX,

disparate impact and disparate treatment under the D.C. Human Rights Act (DCHRA), and

negligence. 6 See generally SAC. GW moves to dismiss. The Court heard oral arguments. The

matter is now ripe. 7

5 The appeal before GW had some complications. First, it was ordered by the Court. See Doe II,

. Second, one trained panelist was challenged for bias and removed. SAC ¶¶ 199-201. Third, another trained panelist performed impermissible outside research then emailed the entire panel requesting information from GW on the impact of the appeals decision on this litigation. Id. ¶ 206-07. That entire panel had to be replaced. Id. ¶ 211. 6 This court has federal jurisdiction arising out of Mr. Doe’s Title IX claim, as well as diversity jurisdiction—Mr. Doe is a citizen of the State of Washington and GW is incorporated in D.C. SAC ¶¶ 1-2. Venue properly lies in this Court because a substantial part of the events underlying Mr. Doe’s claims occurred in D.C. 7 See Mot. to Dismiss.; Mem. of Law in Supp. of Def.’s Mot. to Dismiss Am. Compl. (Mem.) [Dkt. 46-1]; Opp’n to George Washington Univ.’s Mot. to Dismiss Am. Compl. (Opp’n) [Dkt. 47]; Reply in Supp. of Def.’s Mot to Dismiss Am. Compl. (Reply) [Dkt. 48].

7 II. LEGAL STANDARD

Federal Rule of Civil Procedure 12(b)(6) requires a complaint to be sufficient “to

give the defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl.

Corp. v. Twombly,

(2007) (internal citations omitted). Although a complaint

does not need detailed factual allegations, a plaintiff’s obligation to provide the grounds of his

entitlement to relief “requires more than labels and conclusions, and a formulaic recitation of the

elements of a cause of action will not do.”

The facts alleged “must be enough to raise a right

to relief above the speculative level.”

A complaint must contain sufficient factual matter to

state a claim for relief that is “plausible on its face.”

. When a plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged, then the claim has facial plausibility. See Ashcroft v. Iqbal,

(2009). “The plausibility standard is not akin to a probability requirement, but it asks for

more than a sheer possibility that a defendant has acted unlawfully.”

A court must treat the

complaint’s factual allegations as true, “even if doubtful in fact.” Twombly,

.

But a court need not accept as true legal conclusions set forth in a complaint. See Iqbal,

.

III. ANALYSIS

A. Breach of Contract

To state a claim for breach of contract under D.C. law, a plaintiff must allege:

“(1) a valid contract between the parties; (2) an obligation or duty arising out of the contract; (3)

a breach of that duty; and (4) damages caused by that breach.” Tsintolas Realty Col. v. Mendez,

(D.C. 2009). This Court has ruled that GW’s codes and policies form a contract

that Mr. Doe can seek to enforce. See Doe I,

(citing Chenari v. George

Washington Univ.,

(D.C. Cir. 2017)). Because both parties agree that GW has

8 now completed the formal procedures described in its codes and policies, the question is whether

those procedures were carried out fairly and in good faith.

As described by another court in this district, under D.C. law

[a]ll contracts contain an implied duty of good faith and fair dealing, which means that neither party shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract. A party breaches this duty by evading the spirit of the contract, willfully rendering imperfect performance, or interfering with performance by the other party. The test for determining whether a Defendant’s actions breached the covenant of good faith and fair dealing is a reasonableness inquiry.

Paulin v. George Washington Univ. Sch. of Med. And Health Scis.,

(D.D.C. 2012) (internal quotes and citations omitted) (citing Allsworth v. Howard Univ.,

(D.C. 2006)). Conduct is unfair and not in good faith if it is arbitrary and capricious. 8

Kumar v. George Washington Univ.,

(D.D.C. 2016) (citing Wright v.

Howard Univ.,

(D.C. 2013)). Notably, the duty of good faith and fair dealing

“cannot contradict, modify, negate, or override the express terms of a contract.” Billups v. Lab.

Corp. of America,

(D.D.C. 2017) (citing 17A C.J.S. Contracts § 437

(2016)). Rather, the duty of good faith and fair dealing is an interpretive lens through which

courts evaluate the parties’ reasonable expectations for the fulfillment of the terms of the

8 GW also argues “a judgment by school officials that a student has not performed adequately to meet the school’s academic standard is a determination that usually calls for judicial deference.” Alden v. Georgetown Univ.,

(D.C. 1999). The Court agrees, although there is no issue about the University’s academic standards in this case. GW cites no persuasive case law indicating that a university is entitled to similar deference on non-academic matters. Cf. Doherty v. S. Coll. of Optometry,

(6th Cir. 1988) (“[C]ourts have adopted different standards of review when educators’ decisions are based upon disciplinary versus academic criteria—applying a more intrusive analysis of the former and a far more deferential examination of the latter.”). Notwithstanding, GW’s argument overlaps with the standard applicable to good faith and fair dealing. Cf. Chenari,

(considering breach of contract and implied covenant claims together because the standards “overlap”).

9 contract. In this situation, because the count for breach of the duty of good faith and fair dealing

is duplicative of the count for breach of contract, the issues will be consolidated and addressed

together; the independent claim for breach of the duty of good faith and fair dealing will be

dismissed. See WMATA v. Quik Serve Foods, Inc., Nos. 04-cv-687 and 04-cv-838

, at *5 (D.D.C. Apr. 28, 2006).

For the purposes of GW’s motion to dismiss, the Court does not need to address

whether GW’s initial investigation of Ms. Roe’s complaint was adequate or whether the decision

of the Hearing Panel was correct, since on appeal any defects could have been addressed and

remedied. Instead, the question now is whether the decision by GW’s Appeals Panel, which

considered the new evidence and decided that a new hearing was not appropriate, was arbitrary

and capricious.

Complicating this analysis is the ambiguous standard of review applied by the

Appeals Panel. GW exhorts the Court to defer to the factual findings of the Appeals Panel, but

the Hearing Panel was the factfinder in this case, not the Appeals Panel. See Mem. at 10 n.3

(arguing that “credibility determin[ations] are left solely to the discretion of the finder of fact,

which in this case was the hearing panel”). Indeed, that the Appeals Panel was not itself a

factfinder is emphasized by the limited remedies available to it: even with new evidence, it

could not make a factual finding contrary to the Hearing Panel but could only remand to the

Hearing Panel or a new panel for further proceedings. See Code ¶ 35. While the Appeals Panel

did receive written statements from both Mr. Doe and Ms. Roe concerning the new evidence, the

Appeals Panel did not itself hear directly from any witness, new or otherwise; it could not

properly make credibility determinations as between or among witnesses. The Code does state

that “[a]ppeals must be based on new information that . . . significantly alters the finding of fact.”

10

. But without a factfinding function, or insight into credibility, the Appeals Panel could

not be tasked to decide whether the new evidence did, in fact, significantly alter the finding of

fact (that would be the role of a hearing panel on remand), and reading the Code in this way

would seem to frustrate the entire appeals process and deny appellants meaningful review.

Rather, this standard can only be reconciled with the authority and practice of the Appeals Panel

if the Appeals Panel was actually tasked with determining whether the new evidence could

significantly alter the facts, given the totality of the cold evidence under review.

Mr. Doe describes his count for breach of contract as six different claims. Three

of the claims, related to incapacity (Count III.A), SAC ¶¶ 309-13, the preponderance standard

(Count III.B),

, and the adequacy of the investigation (Count III.D),

,

deal with infirmities in the investigative and hearing panel process which have been mooted by

the Appeals Panel’s superseding decision, and so will be dismissed. Mr. Doe’s retaliation claim

(Count. III.F),

, argues that GW failed to punish Ms. Roe for statements she made

related to the case. This claim is sparsely pled, however, and Mr. Doe does not allege that he has

a contractual right to have GW enforce the confidentiality provisions of the Code against Ms.

Roe. It, too, will be dismissed. However, to the extent these claims overlap with Mr. Doe’s

claim that the Appeals Panel’s ultimate decision was improper (Count III.E),

, they are

consolidated and addressed with that claim below.

Mr. Doe also claims that he had insufficient opportunity to challenge Hearing

Panel member Ms. Witkowicki, the Director of Greek Life, for bias (Count III.C).

.

The Code states that “[a]ny party may challenge a Board member on the grounds of personal bias

before the hearing commences.” Code ¶ 27.g. Mr. Doe alleges that Ms. Witkowicki has a

background which evidences biased thinking and would have objected to her presence on the

11 panel. SAC ¶ 134. Mr. Doe further alleges that he was only told the identities of the members of

the Hearing Panel when he arrived for the hearing itself and that he had no meaningful

opportunity to review their backgrounds or object.

. This Court does not infer that Ms.

Witkowicki’s background showed any bias or whether she should have been disqualified as

panelist. It is sufficient that Mr. Doe alleges that the University failed to give him a meaningful

opportunity to challenge the members of the panel, contrary to the Code. GW’s motion to

dismiss this claim will be denied. 9

Only Count III.E—Mr. Doe’s claim that the Appeals Panel improperly denied his

appeal—remains to be addressed. Giving Mr. Doe, as plaintiff, the benefit of his factual

allegations and all reasonable inferences therefrom, the Court cannot reconcile the facts of this

case with the Appeals Panel’s decision.

First, the Appeals Panel considered the phone records belonging to Ms. Roe and

her friend E.E. and determined that they “did not significantly alter the finding of fact because

the phone records supported [E.E.]’s statement that a phone call occurred in the Uber ride.”

Appeals Decision at 1. However, the phone records showed that Ms. Roe had neither called nor

received a call from E.E. SAC ¶ 219. Ms. Roe may have called her roommate A.C., but, as

alleged, A.C. had already left the party for their dorm and was not with E.E. at the time.

Therefore, E.E. could not possibly have known whether any phone call occurred during the Uber

ride, much less actually had a conversation with Ms. Roe during that ride.

9 Unlike Counts III.A, B, and D, Count III.C is not mooted by the Appeals Panel’s decision because the Appeals Panel gave significant weight to the Hearing Panel’s credibility determinations.

12 Ms. Roe may have placed a call to A.C. during the Uber ride, which the Appeals

Panel believed “directly contradicted [Mr. Doe’s] testimony that no phone call occurred during

the Uber ride.” Appeals Decision at 1. But as described by Mr. Doe,

[w]hen a Verizon subscriber’s call goes unanswered for under a minute before hanging up, it is recorded on the subscriber’s bill as a one-minute outgoing call. The 12:06 a.m. call to A.C. would thus be recorded on Ms. Roe’s records in exactly the same way whether or not A.C. ever answered, and therefore whether or not Ms. Roe ever said a word.

SAC ¶ 119. At the point of a motion to dismiss, Mr. Doe is also entitled to all reasonable

inferences that may be drawn from his factual allegations. Together with Mr. Doe’s allegation

that Ms. Roe did not speak with anyone during the Uber ride, see

, the Court gives him

the benefit of the reasonable inference that Ms. Roe’s call to A.C. went unanswered and that no

conversation took place.

The Hearing Panel’s decision gave significant credit to E.E.’s testimony regarding

Ms. Roe’s state of notable intoxication during the Uber ride. The totality of the evidence before

the Appeals Panel indicates that E.E. never spoke to Ms. Doe; certainly, a one-minute or

unanswered call to A.C. does not corroborate E.E.’s testimony. The Appeals Panel excused the

failure of evidence as a mere memory lapse by Ms. Roe, who, it concluded (contrary to the

Hearing Panel), may have been confused about whom she called from the Uber. However, there

is no evidence that Ms. Roe had any recollection of talking to anyone during the Uber ride, at

least not prior to the hearing when she heard E.E.’s statements asserting that E.E. had talked with

Ms. Roe.

. If there were other bases for the Appeals Panel to dismiss the potential

impact of E.E.’s erroneous testimony, it did not state them. GW’s motion to dismiss fails to

explain how the Appeals Panel could reasonably scramble the facts and ignore the errors in

E.E.’s testimony.

13 Second, the Appeals Panel reviewed Dr. Milman’s expert toxicology report.

Advised by Mr. Doe that Ms. Roe was approximately 65 inches tall and weighed somewhere

between 140-150 pounds, Dr. Milman estimated that Ms. Roe’s BAC would have been between

0.26 and 0.37. He opined that at the midpoint BAC of 0.32, she would have had total memory

loss and substantial motor impairment. The Appeals Panel discounted Dr. Milman’s opinion,

however, because he received the wrong height and weight for Ms. Roe—she is actually 70

inches tall and estimates she weighed around 170 pounds at the time of the alleged assault.

.

After finding that Dr. Milman’s calculations were based on incorrect assumptions,

the Appeals Panel was not required to calculate a new BAC based on its own lay knowledge.

That said, the Appeals Panel only decided that Dr. Milman’s assumptions were incorrect because

Ms. Roe was permitted to submit supplemental statements in response to Mr. Doe’s appeal. GW

argues that no provision of the Code was violated when it invited Ms. Roe to file supplemental

statements. The Code states, however, that the “decision to grant or deny the appeal will be

based on information supplied in the written appeal and, when necessary, the record of the

original proceedings.” Code ¶ 34; see also SAC ¶¶ 189, 192-97. Ms. Roe’s actual height and

weight were not in the record prior to the appeal or supplied in Mr. Doe’s written appeal.

Further, the pleadings do not state that GW provided Mr. Doe with a chance to respond to Ms.

Roe’s supplemental statements. 10 Without more information on how appeals are normally

conducted, this apparent irregularity is glaring.

10 Even if the Appeals Panel were not required to calculate a new BAC, Mr. Doe may have been interested in presenting a revised calculation from Dr. Milman.

14 Third, the Appeals Panel discounted the statement of Mr. Roe’s witness, Q.W.,

because the statement was submitted after the hearing and “did not outweigh other evidence

offered by the parties.” Appeals Decision at 1. By definition, some evidence before an appeals

panel will always be new and thus “late.” Further, Q.W. had a reason for submitting his

statement late: he was studying abroad when the Hearing Panel convened. In any event, it is not

the place of either this Court or the Appeals Panel to weigh the Q.W.’s credibility relative to the

other witnesses on a cold record. That factfinding is reserved for a hearings panel. GW does not

address the roles of the Hearing and Appeals Panels in this context.

Fourth and finally, the Appeals Panel addressed newly-discovered text messages

between Ms. Roe and A.C. 11 According to the texts, A.C. had no recollection of talking to Ms.

Roe either during the Uber ride or in the bathroom of the dorm after Ms. Roe returned. Without

explanation, the Appeals Panel found that this evidence “generally corroborate[d]” Ms. Roe’s

statements that she had spoken with someone on the phone during the Uber ride and that she had

spoken to A.C. about the assault when she got back to the dorm.

. This conclusion is

divorced from the evidence and not explained by GW.

To put a finer point on the matter, the Code required two determinations: (1) Ms.

Roe did not have the capacity to consent; and (2) Mr. Doe should reasonably have known that

she was incapacitated. The Appeals Panel was presented with direct contradictions in the

evidence and appears to have strained to overlook such contradictions, leaving no trail of

reasoning.

11 Although E.E.’s phone records were available before Doe II, A.C.’s formal statement and text messages only became available to Mr. Doe after he filed a retaliation claim against Ms. Roe. SAC ¶ 127.

15 Of course, members of the Appeals Panel are neither lawyers nor judges, and their

decisions may not require much explanation. Nonetheless, to warrant deference, such a decision

must provide enough reasoning to avoid being arbitrary and capricious. The bar Mr. Doe must

clear on a motion to dismiss is low. The motion to dismiss will be denied on the breach of

contract claim to the extent it relates to the denial of his appeal.

B. Title IX

Title IX provides, in pertinent part, that “[n]o person in the United States shall, on

the basis of sex, be excluded from participation in, be denied the benefits of, or be subject to

discrimination under any education program or activity” that receives federal funding.

(a). Courts in other circuits have recognized an “erroneous outcome” theory of Title IX

liability, under which a student may prevail upon a showing that they were improperly

disciplined due to gender bias. See Yusuf v. Vassar Coll.,

(2d Cir. 1994); Doe

v. Miami Univ.,

(6th Cir. 2018) (recognizing Title IX defenses of “(1)

erroneous outcome, (2) selective enforcement, (3) deliberate indifference, and (4) archaic

assumptions”) (internal marks and citations omitted). To succeed, a plaintiff must show

“particular facts sufficient to cast some articulable doubt on the outcome of the disciplinary

proceeding” and circumstances showing “that gender bias was a motivating factor behind the

erroneous finding.” Yusuf,

. As discussed above, Mr. Doe has cast “articulable

doubt” on the outcome of disciplinary proceeding; the remaining question is whether there was a

relationship between that outcome and gender bias.

The Second and Sixth Circuits have identified possible indicia of gender bias that

may affect the outcome of a disciplinary proceeding. In Doe v. Columbia University, the Second

Circuit found that local criticism of the school’s prior tolerance of sexual assaults against female

students, combined with an alleged motivation to demonstrate that the school was “serious about 16 protecting female students from sexual assault by male students,” was sufficient to support an

inference of discriminatory intent.

(2d Cir. 2016). By comparison, in Doe v.

Baum the Sixth Circuit found that alleged public attention and an ongoing federal investigation

that “put pressure on the university to prove that it took complaints of sexual misconduct

seriously” provided only background context for a Title IX claim.

(6th Cir.

2018). However, because that context included an additional allegation—that the university’s

hearing panel had credited all testimony by women and no testimony by men—the Sixth Circuit

found sufficient basis to support an inference of discriminatory intent.

. Similarly, in

Doe v. Miami University, the Sixth Circuit found that public pressure created a backdrop against

which another lawyer’s affidavit and loose statistical evidence were sufficient to allege a Title IX

claim.

(6th Cir. 2018). Both the Second and Sixth Circuits agree that other

relevant allegations “might include, inter alia, statements by members of the disciplinary

tribunal, statements by pertinent university officials, or patterns of decision-making that also tend

to show the influence of gender.” Yusuf,

; see also Miami Univ.,

(citing Yusuf,

).

Differing precedents in the Second and Sixth Circuits regarding Title VII pleading

standards (which have been cross-applied to Title IX) explain the different requirements for Title

IX cases. Compare Littlejohn v. City of New York,

(2d Cir. 2015) (finding

Title VII discrimination can be plead under a minimal plausible inference standard), with Keys v.

Humana, Inc.,

(6th Cir. 2012) (finding Title VII discrimination claims must

be pled under Twombly and Iqbal standards). But see Doe v. Univ. of Colorado, Boulder through

Bd. of Regents of Univ. of Colorado,

(D. Colo. 2017) (finding that

the Second Circuit’s interpretation does not weaken the standard required under Twombly and

17 Iqbal). The D.C. Circuit has yet to speak to the underlying issue and the parties disagree about

which standard should be applied, but the Court will not belabor the distinction because Mr. Doe

pleads enough to satisfy the Sixth Circuit’s higher pleading requirements.

Specifically, Mr. Doe alleges two OCR investigation targeting GW’s disciplinary

practices, and a third one potentially pending. See SAC ¶¶ 48-50, 59. Mr. Doe also alleges other

prongs of unwanted public attention, including two other ongoing federal lawsuits, brought by

female students against GW for its recent handling of their sexual assault claims, and public

protests. Id. ¶¶ 15-18, 50-55. Ms. Roe herself is also alleged to have publicly pressured GW for

stronger Title IX enforcement. Id. ¶ 61.

Further, in response to these protests and complaints that GW was “reluctant or

even unwilling to hold individuals accountable for acts of sexual violence,” GW issued a

statement noting that of 16 cases reported between 2015 and 2017, 10 went before a hearing

board and all 10 resulted in a finding of violation. Message from University Administrators,

supra. Without context, the Court would read little into these numbers. Cf. Univ. of Colorado,

(finding that the school was “not responsible for the gender makeup of

those are accused by other students of sexual misconduct”) (internal cites and marks omitted).

However, Mr. Doe alleges that by putting forward these numbers in response to student protests

and as proof of its commitment to combatting sexual assault, GW has “demonstrated a concrete

link between public criticism of its Title IX enforcement regime and the results of individual

Title IX cases.” SAC ¶ 54. The significance of the GW statement is contested—GW provided

some clarification in the next paragraph of its statement, Message from University

Administrators, supra (“[N]ot every case will result in a finding of violation.”)—but the

18 combination of OCR investigations, publicized demonstrations, and the GW statement are

sufficient to avoid dismissal at this point in the litigation.

GW’s motion to dismiss Mr. Doe’s claim under Title IX will be denied.

C. D.C. Human Rights Act

Under the DCHRA, it is “an unlawful discriminatory practice . . . for an

educational institution” to “deny, restrict, or to abridge or condition the use of, or access to, any

of its facilities, services, programs, or benefits of any program or activity to any person otherwise

qualified, wholly or partially, for a discriminatory reason,” including a student’s sex.

(1). The DCHRA also provides that “[a]ny practice which has a discriminatory

effect . . . shall not be deemed unlawful if it can be established that such practice is not

intentionally devised or operated to contravene the prohibitions of this chapter and can be

justified by business necessity.”

(a). Because Mr. Doe has stated a claim

for disparate treatment due to his gender under Title IX, he has also stated a claim for such

disparate treatment under the DCHRA.

That said, Mr. Doe further argues that GW’s facially neutral procedures for

investigating and adjudicating sexual assault cases have a disparate impact on men. He cites the

fact that GW hearing panels from 2015 through 2017 found responsible all accused persons—all

men, upon information and belief—brought before it. The parties agree that private-action

disparate impact claims are not permitted under Title IX, cf. Alexander v. Sandoval,

(2001) (noting that Title VI “prohibits only intentional discrimination” and that Title IX

“was patterned after Title VI”), but they disagree as to whether such claims are permitted under

the DCHRA.

GW argues that the Court should refuse to recognize a disparate impact theory of

liability under the DCHRA. However, the D.C. Court of Appeals has already spoken directly on 19 this issue and found that D.C. “imported into the Human Rights Act, by way of the effects

clause, the concept of disparate impact discrimination developed by the Supreme Court in Griggs

v. Duke Power Co.,

,

,

(1971).” Gay Rights Coal. of

Georgetown Univ. Law Ctr. v. Georgetown Univ.,

(D.C. 1987) (en banc); see

also Smith v. Henderson,

(D.D.C. 2014) (citing Gay Rights Coal.,

). Indeed, the plaintiff in Gay Rights Coalition was a private party, and GW cites no

D.C. case law supporting a different interpretation of the DCHRA.

Notwithstanding D.C. law, Mr. Doe has not actually stated a claim for disparate

impact. He pleads that from 2015 through 2017 “all of the respondents” in GW’s sexual assault

hearings were men. SAC ¶ 277. This allegation is fatal to his claim because without showing

that women go through the same disciplinary process and receive disproportionately different

outcomes, there is no showing of disparate impact; there is no comparator group. Although Mr.

Doe argues that GW is responsible for choosing which cases go to hearing and is responsible for

sending only men to hearings, this is an inevitable result of the pool of respondents; no inference

can be drawn from it.

The fact that only men may have been accused of sexual assault at GW does not

change this conclusion. GW is not responsible for selecting the parties who are the subjects of

its proceedings—that happens through complaints by alleged victims. See Code ¶ 16; cf. Univ.

of Colorado,

. And GW cannot be said to have created a separate

training program to address disproportionately-male misconduct since “it is not alleged in the

pleadings . . . that more men than women engage in sexual assault,” and Mr. Doe asks the Court

not to rely on such an “unstated factual premise.” Opp’n at 38.

20 GW’s motion to dismiss the disparate impact claim under the DCHRA will be

granted. 12 It’s motion to dismiss the claim of disparate treatment based on gender under the

DCHRA will be denied.

D. Negligence

To state a claim for negligence, a plaintiff must allege “(1) that the defendant

owed a duty to the plaintiff, (2) breach of that duty, and (3) injury to the plaintiff that was

proximately caused by the breach.” Hedgepeth v. Whitman Walker Clinic,

(D.C. 2011). When a tort parallels a claimed breach of contract, “the tort must exist in its own

right independent of the contract, and any duty upon which the tort is based must flow from

considerations other than the contractual relationship.” Choharis v. State Farm Fire and Cas.

Co.,

(D.C. 2008). Thus, a “negligence claim based solely on a breach of

the duty to fulfill one’s obligations under a contract . . . is duplicative and unsustainable.”

Himmelstein v. Comcast of the Dist. LLC,

(D.D.C. 2012) (citing

Choharis,

).

GW argues that it owes no duty to Mr. Doe outside of those created by its

policies, and Mr. Doe makes only a nominal defense of his negligence allegations, citing a series

of cases outside this Court’s jurisdiction. Contrary to his attempt, Choharis represents the law of

the District of Columbia. Further, while Mr. Doe accurately states that torts that exist

independent of a contract are not duplicative, he alleges no such independent torts. Compare

SAC ¶¶ 309-42 (listing claims under breach of contract), with id. ¶¶ 346-53 (listing the same

claims under negligence). The claim of negligence will be dismissed.

12 Accordingly, the Court need not address whether a disparate impact claim under the DCHRA would conflict with GW’s obligations under Title IX.

21 IV. CONCLUSION

GW’s Motion to Dismiss, Dkt. 46, will be granted in part and denied in part. Mr.

Doe’s claims for disparate treatment under Title IX (Count I) and the DCHRA (Count II.A) and

his claim for breach of contract due to denial of his appeal (Count III.E) will be allowed to

proceed to discovery. All other claims will be dismissed. A memorializing Order accompanies

this Memorandum Opinion.

Date: December 20, 2018 ROSEMARY M. COLLYER United States District Judge

22