Raihan v. George Wash. Univ.

Citation: 324 F. Supp. 3d 102Docket: Case No. 1:18-cv-00994 (TNM)

Court: Court of Appeals for the D.C. Circuit; August 28, 2018; Federal Appellate Court

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Plaintiff Aniqa Raihan has filed a lawsuit against George Washington University, alleging violations of Title IX regarding sexual harassment and her own sexual assault. The Supreme Court has established that schools can be held liable for student-on-student harassment only if they exhibit "deliberate indifference" to known harassment and if the harassment is severe enough to hinder the victim's educational access, as outlined in Davis v. Monroe Cty. Bd. of Educ. Ms. Raihan's Complaint does not meet this threshold, lacking sufficient facts to suggest that the University's policies directly caused her sexual assault. Additionally, her claims of educational harm are minimal, focusing only on an encounter with her assailant at the gym, which did not constitute a significant deprivation of educational benefits.

Raihan also alleges that the University negligently retained the Director of the Office of Student Rights and Responsibilities, but this claim fails under D.C. tort law. The Court will grant the University’s Motion to Dismiss. 

The background includes details from Ms. Raihan's Complaint, which describes her alleged assault in March 2014, following a night of drinking. After declining sexual advances from Mark Favorito and becoming incapacitated, she was assaulted without consent. Ms. Raihan later sought assistance from the University's Title IX Coordinator and filed a formal complaint in October 2016, over two years post-assault. She criticized the University’s process for handling her complaint, noting that it was adjudicated under the Code of Student Conduct rather than the Title IX Sexual Harassment and Sexual Violence Policy, despite the latter being the designated policy for such cases.

The Policy mandates the University to take interim protective actions during sexual harassment investigations when necessary for community safety. It establishes a 45-day goal for concluding disciplinary proceedings post-investigation and assigns the Vice Provost and Dean of Student Affairs, with the Provost's concurrence, the authority to impose suspension or expulsion sanctions. Ms. Raihan identifies several structural deficiencies, including the University's failure to utilize the Title IX Office and appropriate sexual misconduct policies, citing a history of inadequate responses that led to a 2011 investigation by the U.S. Department of Education. This inquiry resulted in a resolution agreement requiring new policies regarding sexual misconduct reports.

The University's 2014 Climate Survey indicated significant issues, revealing that 36% of upper-class females experienced unwanted sexual behavior and 60% of undergraduates doubted the University’s effectiveness in fostering a safe environment. In August 2017, the Department of Education initiated another investigation into the University’s handling of sexual misconduct, with results pending. Ms. Raihan criticized the adjudication process as confusing, noting discrepancies in how it was described versus implemented. After a 31-month delay in filing her complaint, she engaged with Director Slifka shortly after filing, resulting in a formal hearing in December 2016. The panel concluded that Mr. Favorito had committed sexual misconduct and recommended a suspension of at least one year.

Despite this recommendation, Ms. Raihan received an official outcome in March 2017 stating Mr. Favorito was granted a deferred suspension, allowing him to graduate before serving any disciplinary action. Director Slifka's decision to recommend a deferred suspension, approved by Dean Konwerski, diverged from the panel's findings. Ms. Raihan was limited in her appeal rights, only able to contest the panel's findings rather than the imposed sanction.

Ms. Raihan did not appeal the University's decision, which became final after seven days. Subsequently, she initiated a Change.org petition demanding the expulsion of Mr. Favorito and the removal of Director Slifka, along with advocating for changes in the University’s sexual misconduct policies. Partnering with GW Students Against Sexual Assault, she organized an email campaign urging the University to terminate Mr. Favorito from his managerial role at the campus gym. Despite imposed restrictions, Mr. Favorito allegedly harassed female employees who had reported him, leading several to resign. Ms. Raihan reported that he raped or attempted to rape three other students and called for his immediate suspension and investigation, which the University failed to act upon. Throughout the investigation, the University did not implement any measures to protect her from Mr. Favorito on campus. After encountering him at the gym, which he worked at, Ms. Raihan felt that his presence denied her access to the facility. Both graduated in May 2017, and Ms. Raihan filed a lawsuit in April 2018, seeking damages and legal fees, prompting the University to file a motion to dismiss.

To avoid dismissal under Fed. R. Civ. P. 12(b)(6), a complaint must present sufficient factual matter to demonstrate a plausible claim for relief. A claim is deemed plausible when factual allegations could support a reasonable inference of the defendant's liability. Courts must draw reasonable inferences in favor of the plaintiff but cannot assume the truth of legal conclusions. Only the facts in the complaint, attached documents, and judicially noticeable matters are considered in determining the adequacy of the claims.

Title IX prohibits sex-based discrimination in educational programs receiving federal funding and allows private lawsuits for schools' inadequate responses to student-on-student harassment. According to the Supreme Court's interpretation, schools can be liable under Title IX for their own misconduct when they have substantial control over both the harasser and the situation, and if their response shows deliberate indifference to known harassment. Deliberate indifference is defined as a response that is clearly unreasonable given the circumstances, establishing a heightened standard for liability that courts may decide as a matter of law.

Recipients of federal funding, such as schools, cannot evade liability for peer harassment merely by eliminating known instances of it; they must respond adequately to such harassment. Courts will not interfere with school administrators' disciplinary decisions unless those responses are deemed clearly unreasonable given the circumstances. Title IX holds funding recipients liable for severe, pervasive, and objectively offensive sexual harassment that denies victims access to educational opportunities. Peer harassment is less likely to have the systemic impact required for liability, particularly if it involves only a single incident. A school can be liable under Title IX for peer sexual harassment if it shows deliberate indifference to known harassment that effectively denies access to educational benefits.

In Ms. Raihan's case, she claims the University fostered a culture of sexual hostility, leading to her assault. However, she fails to provide specific instances of mishandled cases besides her own, arguing instead that the University’s alleged indifference constitutes an intentional violation of Title IX. While the Supreme Court has indicated that schools can be liable for intentional violations regardless of actual knowledge, Ms. Raihan’s claims lack sufficient detail to support this assertion. The allegations do not demonstrate a pattern of official misconduct comparable to past cases where schools were found liable. The most significant claim is that the University adopted a policy to address sexual assault in response to federal scrutiny but did not implement it, a failure that could indicate systemic issues but does not meet the threshold for intentional violation of Title IX.

The failure to establish a grievance procedure does not constitute discrimination under Title IX, nor does non-compliance with federal regulations. Despite a 2014 survey indicating student dissatisfaction with the University's handling of sexual misconduct, there is no credible evidence of the University's intent to allow sexual harassment or assault to go unpunished. Ms. Raihan's claims amount to negligence rather than intent, which the Supreme Court has ruled is insufficient for Title IX liability. The court emphasizes that merely having knowledge of peer harassment does not protect an institution from liability; there must be actual knowledge of specific prior assaults.

Ms. Raihan refers to the case Tubbs v. Stony Brook Univ., which requires actual knowledge of a heightened risk to establish a Title IX violation. However, her complaint fails to present facts that would allow a plausible inference of such knowledge. General claims regarding poor sexual misconduct policies, with only her incident as a specific example, do not meet the Tubbs standard. Additionally, she cites Doe 1 v. Baylor Univ., but that case involved detailed allegations of systemic failures and actual knowledge of multiple assaults, which is not reflected in Ms. Raihan's situation. 

Her assertion that the University responded with deliberate indifference after receiving notice of her assault over two and a half years later lacks sufficient allegations of unreasonable behavior. She claims that the University’s failure to provide a prompt resolution exposed her to further harassment that impeded her educational access. However, the evidence does not adequately demonstrate deliberate indifference on the part of the University.

Judge Moss in Cavalier determined that the plaintiff met the threshold to survive a motion to dismiss by alleging that Catholic University took 298 days to decide against holding her alleged assailant accountable, despite her prompt report of the assault. The plaintiff detailed several failures by the University, including excessive delays in the investigation, biased processes favoring the assailant, hostility from the investigator, and inadequate enforcement of a no-contact order, which was repeatedly violated by the assailant. Although the University found insufficient evidence against the assailant, it upheld Ms. Raihan's complaint but imposed what she considered an ineffective punishment. 

Citing the precedent set in Davis, the court noted that it should not second-guess school disciplinary decisions. Despite Ms. Raihan’s claims of deliberate indifference due to the University’s inadequate response, the court found that her allegations did not meet the Davis standard for severity and pervasiveness necessary to establish a claim. The court emphasized that mere assertions of a hostile environment or risk of harassment do not suffice for legal claims. While Ms. Raihan’s claim that encountering her assailant at the campus gym made her uncomfortable was acknowledged, it fell short of the required standard, as isolated incidents do not typically demonstrate the systemic effect needed for liability under Title IX. The court contrasted her situation with a hypothetical case of ongoing threats that would meet the criteria for harassment severely limiting access to educational resources.

The University's actions did not constitute the level of harassment that Ms. Raihan alleged. More than two years post-assault, she encountered Mr. Favorito at a public gym without any notable incident. This encounter was markedly different from the frequent and flagrant harassment described in the Cavalier case. Following the gym meeting, unspecified restrictions were placed on Mr. Favorito, which he allegedly violated, though not in any direct manner toward Ms. Raihan. The Court acknowledges the emotional toll on sexual assault victims but finds no substantial evidence that the University’s actions led to 'severe, pervasive, and objectively offensive' harassment in Ms. Raihan's situation. 

The timeline of events is critical; the assault occurred in March 2014, but Ms. Raihan did not file a complaint until October 2016, providing no claims of harassment or educational limitations in the intervening years. The gym encounter likely took place after her complaint was adjudicated in March 2017, shortly before her graduation. The lack of misconduct during the encounter and the University's prior restrictions on Mr. Favorito undermine her claim of being denied equal access to University resources. 

Ms. Raihan argues that the University’s failure to adequately sanction Mr. Favorito left her vulnerable to harassment, referencing the Davis case, which defines 'subjected to discrimination' to include vulnerability. However, the Court maintains that the alleged behavior must significantly impact equal access to educational programs to warrant Title IX liability. A single instance of harassment does not meet this threshold, especially in the university context where control over student behavior is less stringent than in primary education. The Court concludes that seeing Mr. Favorito in a campus gym does not equate to pervasive harassment or a systemic denial of educational benefits.

The claim made by Ms. Raihan fails to establish the necessary injury for Title IX liability. Regarding her negligent retention claim against the University for retaining Director Slifka, the standard under District of Columbia tort law requires proof that the employer did not exercise reasonable care in supervising or retaining an employee, leading to harm. Ms. Raihan asserts that Slifka's failure to investigate her situation showed 'callous disregard' and harmed her, alleging that the University was aware of prior complaints against Slifka by other victims. However, her claim is inadequate for two main reasons: first, she has not presented sufficient factual evidence to suggest the University had actual or constructive knowledge of any previous misconduct by Slifka; mere assertions based on belief do not meet the legal standard. Second, under District of Columbia law, negligent supervision claims must arise from common law causes of action, not statutory duties. Ms. Raihan's claim does not focus on a tort committed by Slifka but rather on his inadequate response to her report. The Court clarifies that common law duties do not require the prevention of all workplace sexual harassment unless it constitutes a tort. Additionally, the Court rejects Ms. Raihan's argument that a statutory claim can support a negligent supervision claim, stating that common law duties do not extend to her allegations against Slifka. Consequently, the negligent supervision claim is dismissed. The Court will grant the Defendant's Motion to Dismiss based on these findings. Furthermore, the Court will not consider the University’s alleged failure to comply with a now-rescinded Department of Education guidance document as evidence of deliberate indifference to harassment. Lastly, allegations regarding other incidents occurring after Ms. Raihan's assault are deemed irrelevant to establishing prior indifference.