Cavalier v. Catholic Univ. of Am., Civil Action No. 16–2009 (RDM)

• Decision Date: 27 March 2018
• Docket Number: Civil Action No. 16–2009 (RDM)
• Citation: 306 F.Supp.3d 9
• Parties: Erin CAVALIER, Plaintiff, v. CATHOLIC UNIVERSITY OF AMERICA, Defendant.
• Court: U.S. District Court — District of Columbia

306 F.Supp.3d 9

Erin CAVALIER, Plaintiff,

v.CATHOLIC UNIVERSITY OF AMERICA, Defendant.

Civil Action No. 16–2009 (RDM)

United States District Court, District of Columbia.

Signed March 27, 2018

Abigail A. Graber, Pro Hac Vice, Brown, Goldstein & Levy, L.L.P., Baltimore, MD, Kobie A. Flowers, Brown Goldstein Levy, LLP, Washington, DC, for Plaintiff.

William David Nussbaum, Saul Ewing LLP, Washington, DC, for Defendant.

MEMORANDUM OPINION AND ORDER

RANDOLPH D. MOSS, United States District Judge

Plaintiff Erin Cavalier alleges that she was sexually assaulted in her dorm room by a fellow freshman at Defendant Catholic University of America ("the University"). According to her complaint, she was "heavily inebriated" at the time of the assault, was "incapable of consenting," and "remembers only finding" the other student—referred to as "John Doe" for purposes of this lawsuit—"on top of her engaging in sexual intercourse." Dkt. 1 at 10–11 (Compl. ¶¶ 37, 40–41). She immediately reported the assault to the University. The University conducted an investigation but concluded that there was insufficient evidence to justify moving forward with disciplinary proceedings against Doe. Cavalier disagreed with that decision and continued to press for a disciplinary hearing. In support of her effort, she produced a toxicology report taken several hours after the alleged assault, which showed by "retrograde extrapolation" that her blood alcohol level at the time of the alleged assault was "almost three times the legal limit" for driving a motor vehicle. Id. at 12 (Compl. ¶ 48). Eventually, the University agreed to hold a hearing, and it instructed that Cavalier and Doe avoid any "direct" or "indirect" contact with one another. Dkt. 1–5 at 2; Dkt. 1 at 18 (Compl. ¶ 74). The outcome, however, did not change. The hearing board "found that no force was involved, that [Cavalier was] not incapable of giving consent, and that [Doe] would not reasonably have thought that [Cavalier was] incapacitated or unable to give consent." Dkt. 1–6 at 2. The Dean of Students, in turn, rejected Cavalier's appeal. See Dkt. 1–9. Although the University did leave the no-contact order between Cavalier and Doe "in place indefinitely," Dkt. 1–6 at 1, Cavalier alleges that Doe repeatedly violated the order over the course of the next three years and that, despite her complaints, the University did not redress those violations or provide her with any related accommodations or assistance.

Against this backdrop, Cavalier brings this action against Catholic University under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681(a) ("Title IX"), and D.C. tort law. She alleges that the University's investigation and disciplinary process were "wholly inadequate, untimely, and biased" and that the University failed to enforce the no-contact order or otherwise to protect her "from further harassment by her rapist." Dkt. 1 at 1–2 (Compl. ¶ 3). The University's response to the assault, she contends, violated Title IX because it was "clearly unreasonable in light of the known circumstances" and resulted in "severe, pervasive" harassment that deprived her of the "educational opportunities or benefits" the University provided to its other students. Davis v. Monroe Cty. Bd. of Educ. , 526 U.S. 629, 648–50, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999). The University also violated Title IX, according to Cavalier, by retaliating against her for reporting the assault, for pressing the University to take action, and for filing a complaint with the U.S. Department of Education's Office for Civil Rights. Finally, Cavalier brings three tort claims under D.C. law. She alleges that the University (1) negligently failed "to protect [her] from sexual harassment, including sexual assault and a hostile educational environment," Dkt. 1 at 34 (Compl. ¶ 148); (2) negligently subjected her to emotional distress by failing "to promptly, adequately, reliably, fairly, and impartially investigate and resolve [her] complaint" and by failing to enforce the no-contact order, id. at 35–36 (Compl. ¶ 157–60); and (3) intentionally subjected her to emotional distress by engaging "in extreme and outrageous conduct" by failing to take prompt and meaningful action in response to the alleged assault, id. at 36 (Compl. ¶ 162).

The University moves to dismiss Cavalier's complaint for failure to state a claim under Title IX and D.C. tort law and as untimely under the relevant statutes of limitations. For the reasons explained below, the Court agrees that Cavalier has failed to state a claim for Title IX retaliation and for intentional infliction of emotional distress. The Court is not convinced, however, that Cavalier's Title IX deliberate indifference claim or remaining D.C. tort law claims fail as a matter of law at this early stage of the litigation. Finally, the Court rejects the University's motion to dismiss on statute of limitations grounds. The Court will, accordingly, GRANT in part and DENY in part the University's motion to dismiss.

I. BACKGROUND

The parties agree that the Court must take the factual allegations of the complaint as true for purposes of the present motion, and they agree that the Court may also consider the multiple documents attached to the complaint. See EEOC v. St. Francis Xavier Parochial Sch. , 117 F.3d 621, 624 (D.C. Cir. 1997) ; Nichols v. Vilsack , No. 13-01502, 2015 WL 9581799, at *1 (D.D.C. Dec. 30, 2015). They disagree, however, as to how the Court should consider the attached documents. According to the University, by attaching the investigative reports and related correspondence to the complaint, Cavalier incorporated the content of those materials into her complaint and, as a result, the Court may treat the factual assertions in those materials as true for purposes of the pending motion to dismiss. Dkt. 10 at 2 & n.1. Cavalier agrees that the Court may consider the attachments, but she contends that it should not ineluctably accept each of the assertions contained in the attachments as true. Dkt. 9 at 16.

Cavalier is correct. "When considering incorporation, it is necessary to consider ‘why a plaintiff attached the documents, who authored the documents, and the reliability of the documents.’ " Banneker Ventures, LLC v. Graham , 798 F.3d 1119, 1133–34 (D.C. Cir. 2015) (citation omitted). For example, by attaching a written contract to her complaint, a plaintiff might concede that the statute of frauds does not apply, but a plaintiff would not concede the truth of an allegedly libelous writing by attaching it to her complaint. Id. at 1133. The same principle applies here. By attaching various investigative documents and related correspondence to her complaint, Cavalier acknowledges that the investigation occurred, that the attached reports and correspondence are true and accurate copies of those prepared in the course of the investigation, and that the timeline of events is, at least in most instances, accurate. She does not concede, however, that all factual assertions contained in those materials—including, most notably, those that are in tension with her current allegations—are true. With this framework in mind, the Court will summarize Cavalier's factual allegations, as set forth in her complaint and as further explicated by the attachments.

A. Alleged Assault

According to Cavalier, at approximately 1:00 a.m. on December 15, 2012, she was raped by Doe, who "engaged in sexual intercourse with her [despite] knowing [that] she was intoxicated and incapable of giving consent." Dkt. 1 at 10 (Compl. ¶ 34). Both Cavalier and Doe were freshmen and had just completed their first semester at the Univerisity. Their paths crossed at a party at Flather Hall, a dormitory on the Catholic University campus, at about 11:00 p.m. on the night of December 14, 2012. Id. (Compl. ¶ 37). Before that night, they were only "minimally acquainted as ... athletes;" he was on the football team, and she was on the lacrosse team. Id. (Compl. ¶¶ 34, 36). Before arriving at the party, Cavalier had been drinking with a friend, and, by the time Cavalier arrived at the party, she was "heavily inebriated." Id. (Compl. ¶ 37). She continued to drink after arriving at the party. Id. (Compl. ¶ 37). More significantly, she alleges that her state of inebriation was evident to Doe and others and that, indeed, she "pass[ed] out at the party as a result of her excessive drinking." Id. (Compl. ¶ 37). Doe also drank at the party, but "he maintained control of his actions." Id. (Compl. ¶ 38).

When the party ended, Cavalier apparently asked Doe to walk her back to her dorm at Ryan Hall, although Cavalier does not remember how she got back to her room. Id. at 11 (Compl. ¶ 40). She does remember, however, "finding Doe on top of her engaging in sexual intercourse with her." Id. (Compl. ¶ 40). Cavalier does not remember Doe leaving her room. Id. (Compl. ¶ 42). At around 1:30 a.m., a Resident Assistant saw Cavalier in the bathroom, and Cavalier "broke down and cried," telling the Resident Assistant "I think I've just been raped." Dkt. 1–2 at 6; Dkt. 1 at 16 (Compl. ¶ 69). At around 2:00 a.m., the Resident Assistant "called [the University] Area Coordinator Nicole Giglia and alerted her that [Cavalier] may have been sexually assaulted." Dkt. 1 at 11 (Compl. ¶ 43). Giglia, in turn, called Lieutenant Dicks of the University's Department of Public Safety ("DPS"), who met Giglia at the dormitory. Id. (Compl. ¶ 43). According to a report prepared by Giglia, Cavalier was crying in her room and told Giglia that she had been "raped." Dkt. 1–11 at 2; Dkt. 1 at 11 (Compl. ¶ 43). Cavalier also told Giglia that "the details of the night were blurry" due to her drinking. Dkt. 1–11 at 2; Dkt. 1 at 11 (Compl. ¶ 43). Lieutenant Dicks interviewed Cavalier, and the D.C. Metropolitan Police Department ("MPD") and the D.C. Fire and Emergency Medical Services Department were contacted. Dkt. 1 at 11 (Compl. ¶¶ 44–45).

Officer Moore of the MPD arrived at...