Butters v. James Madison Univ.

• Decision Date: 22 September 2016
• Docket Number: Civil Action No. 5:15-cv-00015
• Citation: 208 F.Supp.3d 745
• Parties: Sarah Elizabeth BUTTERS, Plaintiff, v. JAMES MADISON UNIVERSITY, Defendant.
• Court: U.S. District Court — Western District of Virginia

208 F.Supp.3d 745

Sarah Elizabeth BUTTERS, Plaintiff,

v.JAMES MADISON UNIVERSITY, Defendant.

Civil Action No. 5:15-cv-00015

United States District Court, W.D. Virginia, Harrisonburg Division.

Signed September 22, 2016

Christopher Jamieson Toepp, Allen, Allen Allen & Allen, Fredericksburg, VA, Wilbur Coleman Allen, Jr., Allen, Allen, Allen & Allen, Richmond, VA, for Plaintiff.

John Godfrey Butler, III, Nicholas Foris Simopoulos, Nerissa Neal Rouzer, Office of the Attorney General, Richmond, VA, for Defendant.

MEMORANDUM OPINION

Elizabeth K. Dillon, United States District Judge

In this action, plaintiff Sarah Butters brings a claim against James Madison University (JMU) under Title IX of the Education Amendments of 1972 (Title IX), 20 U.S.C. § 1681(a), which prohibits certain educational institutions from discriminating "on the basis of sex."¹ Her complaint alleges that, while she was enrolled as a student at JMU and on spring break in Florida in March 2013, she was sexually assaulted by three male JMU students. One of those students made a video recording of at least a portion of the assault using his cell phone camera. The video was subsequently disseminated to other JMU students. As discussed in more detail below, Butters complained to JMU about the assault and the video and contends that the school's response to both her initial complaint and her formal complaint, which was filed more than nine months later, violated Title IX.

Pending before the court is JMU's motion for summary judgment, in which it argues that the undisputed facts show that Butters's Title IX claim should not proceed to trial. It contends that it is entitled to judgment in its favor on three grounds. First, it argues that the evidentiary record establishes that the harassment Butters experienced was not "so severe, pervasive, and objectively offensive that it created a hostile or abusive educational environment." (JMU Mem. Supp. Mot. for Summ. J. 16, Dkt. No. 59.) Second, it asserts that the record refutes any claim that JMU was deliberately indifferent or clearly unreasonable in its response to her report of harassment, as required to impose liability under Title IX. (Id. at 18.) Third, JMU claims that the record is devoid of evidence that JMU's response caused Butters to suffer further sexual harassment or to make her more vulnerable to it, "particularly in a context over which JMU has substantial control." (Id. at 23.)

The motion has been fully briefed, the court heard argument on the motion, and the court has considered all the written submissions of the parties, including the post-hearing submissions from the parties that were provided to chambers and docketed pursuant to a separate order. For the reasons set forth below, the court will grant JMU's motion for summary judgment.

I. BACKGROUND

The court construes the evidence, and reasonable inferences therefrom, in the light most favorable to Butters, the non-moving party. Laing v. Fed. Express Corp. , 703 F.3d 713, 714 (4th Cir. 2013).

A. Butters Is Assaulted While On Spring Break, and a Portion of the Assault Is Recorded.²

In the fall of 2010, Butters enrolled at JMU as a freshman. (Butters Dep. 25, Dkt. No. 62–4.) Her academic performance was somewhat inconsistent during her first two years. (Id. at 25–28.) Her first semester of her junior year, she had a 1.033 GPA, which she attributed to working more hours and undergoing surgery at the beginning of the semester. (Id. at 28–29.) In the next semester of Spring 2013—and before the March 2013 assault—Butters withdrew from three of her four classes. (Id. at 29–30, 43; Tumer Decl. ¶¶ 11, 13, Dkt. No. 59–2.) She explained that she withdrew to pick up "more hours for work because [she] was stressed about money and paying [her] medical bills." (Butters Dep. 30.) The one class in which she remained enrolled met only once each week, on Wednesday nights. (Tumer Decl. ¶¶ 14–15.) She was also working during this semester at a local hotel. (Butters Dep. 12–13.)

During her spring break, Butters traveled to Panama City, Florida with a group of JMU students. The trip was not planned or sponsored directly by JMU, but the purpose of the trip was to socialize with other JMU students. (Id. at 44.) On March 3, 2013, which was her second day there, Butters spent the day on the beach with her friends and consumed alcohol. (Id. at 47.) At some point, she went to the condo where the three men who appear on the video were staying. (Id. at 49.) This condo was in the same complex where she was staying. (Id. ) The three men are Jay Dertzbaugh, Nick Scallion, and Mike Lunney (collectively the Assailants), and all three were friends of Butters's and members of the same fraternity as her boyfriend—Sigma Chi. (Id. ) She does not know how she got to the condo or its bathroom, and she does not remember the assault actually occurring. (Id. at 48–50.) She remembers being on the beach, and the next thing she remembers is being with a few girls from another sorority in a condo other than her own at the same condo complex. (Id. at 50.) The next day, her close friend told her there was a video going around of her topless. (Id. at 52–53.) That was the first she had heard of the video or the incidents depicted in it. While on spring break, she twice questioned Jay Dertzbaugh, with whom she knew she had been socializing that day, whether a video existed. He denied it both times. (Id. at 53–54, 61–62.)

The video itself takes place in a bathroom, apparently at the condo where the Assailants were staying. The copy provided to the court is approximately 90 seconds long, and it is difficult to see, and even more difficult to hear, what is happening.³ Butters is topless throughout the video and is wearing only a bikini bottom. There are at least three distinct times in the video when the Assailants (or one of them) grab at her breast or breasts. So, the video clearly depicts contact of a sexual nature. But the video itself does not clearly depict whether the encounter is consensual or not, nor does it clearly reflect that Butters is too intoxicated to consent. For example, she appears to be standing on her own throughout most of the video, and she seems to be speaking and interacting with the men. Also, the video does not show what happened before any of the individuals entered the bathroom or how her top came off. (See Dkt. No. 1–1, Sealed Video.)⁴

B. JMU Learns of the Assault, and Butters Decides Not to File a Judicial Complaint At That Time.

Butters testified that, after she returned from her trip on March 10, 2013, she learned for certain that a video existed and that other JMU students in other fraternities either possessed the video or had seen it. (Butters Dep. at 55–60, 67–72 (describing people who had possessed or seen the video and estimating the number at "a few dozen").) She explained that, as far as she knew, the only distribution was via text and on students' cell phones. (Id. at 69–70.)

She took some steps herself to try to stop the circulation of the video. She reached out to friends in three fraternities, each of whom had at least one member who had, or had seen, the video, and asked her friends to get rid of it or try to stop its distribution. (Id. at 72–74.) She also asked two people she knew that had the video to delete it in front of her, which they did. (Id. at 59, 68, 72.) With the assistance of her sorority sisters, she also met with the Assailants and discussed the assault and the video. (Butters Timeline, Lushbaugh Dep. Ex. 4, Dkt. No. 62–6.) According to a timeline she prepared as part of the complaint process, Butters stated that the video "was supposedly no longer circulating as of March 26, 2013." (Id. ) Butters testified at her deposition that she did not know whether or not the video continued to circulate after that date. (Butters Dep. 74, 75, 77.) Instead, she said people were still discussing it, but she was not aware of any further circulation after March 26, 2013. (Id. at 75–76.) Butters has not provided any other evidence to show that the video continued to circulate after that date, either.⁵

It is undisputed that, from the time of the incident until March 27, 2013, neither JMU nor any JMU employee had notice of the assault, the video, or the video's alleged circulation. (Polglase Dep. 40, Dkt. No. 62–5.) Prior to that, Butters did not want "to escalate" the situation and "just wanted it to go away." (Butters Dep. 79.) The first notification to any JMU employee occurred on March 27, 2013, when a good friend and sorority sister of Butters's contacted the sorority's advisor, Paula Polglase. (Butters Dep. 16, 79; Polglase Dep. 7, 42.) Polglase was also employed by JMU at that time as the social media coordinator for university communications and marketing. (Polglase Dep. 7.)

Polglase immediately called Butters and then arranged to meet with her that evening. Prior to their meeting, Polglase contacted JMU's counseling center and the Office of Judicial Affairs (OJA) to determine what resources were available to Butters. (Polglase Dep. 46–48, 74–75.) The counseling center, in addition to informing her about certain resources, also advised her to notify a JMU Title IX officer, which she did.⁶ When meeting with Butters, Polglase explained her options to her, which included meeting with OJA and obtaining counseling. (Butters Dep. 82.) Butters did not "jump" on any of the options, because she "wanted it to go away." (Id. at 83.)

On the same date, Butters's sorority sister contacted the president of Sigma Chi to meet to discuss the assault and the video. (Id. at 80–81.) Polglase participated in the meeting. (Polglase Dep. 109.) The men's fraternity determined that the three Assailants should be sanctioned. (Id. at 109–10, 115–16.) Specifically, the fraternity prohibited them from attending fraternity events and from having any contact with Butters. (Butters Dep. 138; Scallion Dep. 35–36, Dkt. No. 62–10.) Polglase was generally aware of these sanctions, and JMU employees...