Title IX / College Discipline Practice - Warshaw Burstein LLP | <em >Cavalier v. Catholic University of America,</em > Civil Action No. 16-2009 (RDM), 2021 U.S. Dist. LEXIS 6000 (D.D.C. Jan. 12, 2021)
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  • Cavalier v. Catholic University of America, Civil Action No. 16-2009 (RDM), 2021 U.S. Dist. LEXIS 6000 (D.D.C. Jan. 12, 2021)
    Erin Cavalier was a freshman student at The Catholic University of America (the “University”) when she was allegedly raped in her dorm room by a fellow freshman, John Doe. On December 14, 2012, Cavalier and Doe met at a party on campus. The two drank heavily, and as the party dissipated, Cavalier asked Doe to walk her home. Cavalier and Doe went to Cavalier’s dorm room where they then engaged in sexual intercourse. A short time later, another student found Cavalier partially unclothed on the floor of the dormitory bathroom. That night, Cavalier reported that she may have been raped. The police responded and Cavalier was taken to the hospital to be evaluated for a potential sexual assault. Cavalier told her resident advisor that she was raped because she had consented to sex with a condom, but Doe did not use a condom. Doe told investigators that he did use a condom that night, but it broke during sexual intercourse. A condom was found in Cavalier’s garbage can.

    The University did not proceed with a disciplinary hearing because the investigators found that the sex was consensual, citing Cavalier’s statements and the fact that Doe did use a condom. Cavalier continued to push for a hearing, arguing that the investigators failed to consider whether she was incapacitated and incapable of giving consent. At first, the investigators issued an addendum to the investigation report stating, “there is no evidence presented that states [Cavalier's] blood alcohol level impaired her ability to give consent at the time of the incident.” This addendum ignored witness statements and a toxicology report to the contrary. Based on this addendum, the University continued to refuse to hold a hearing. However, after continued pressure from Cavalier, the University granted a hearing, in part to give Cavalier closure. Although Doe was found not responsible, a no-contact order was issued indefinitely. Cavalier filed this lawsuit for Title IX deliberate indifference, Title IX retaliation, intentional infliction of emotional distress, and negligent infliction of emotional distress. The Court dismissed Cavalier’s Title IX retaliation, intentional infliction of emotional distress at the motion to dismiss stage. The University now moves for summary judgment on Cavalier’s Title IX deliberate indifference, and negligent infliction of emotional distress claims. The Court granted summary judgment on Cavalier’s negligent infliction of emotional distress claim but denied summary judgment as to Cavalier’s deliberate indifference claim in so far as she challenged the University’s initial failure to consider incapacitation.

    To prove deliberate indifference, the plaintiff must show that the university had actual knowledge of the sexual harassment or discrimination. Second, the plaintiff must show that the university exercised substantial control over both the harasser and the context in which the known harassment occurred. Third, the sexual harassment complained of 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." Fourth, mere negligence is not enough; the plaintiff must demonstrate that the university was deliberately indifferent to the known acts of sexual harassment. Finally, when the university has not engaged in harassment directly, it may not be liable for damages unless its deliberate indifference subjects its students to harassment. That is, the university's deliberate indifference must, at a minimum, cause a student to undergo harassment or make them liable or vulnerable to it.

    In support of her deliberate indifference claim, Cavalier argued the hearing was a sham; it was discriminatory that Doe had a right to a hearing, but she did not; the University failed to enforce the no-contact order, and; the University failed to consider her incapacitation. The Court rejected Cavalier’s arguments except on the issue of incapacitation. On the night in question, Cavalier consumed at least two shots of tequila, a glass of wine, and two to three shots of vodka and, more importantly, could not remember what had happened even immediately after the alleged rape occurred. While there were conflicting accounts of Cavalier’s level of intoxication and her capacity to consent, the initial investigation report and the subsequent addendum ignored any evidence of Cavalier’s incapacitation. The Court held that a reasonable jury could find that the University’s initial investigation into Cavalier's complaint was "clearly unreasonable" on the ground that the University did not give serious consideration to the possibility that Cavalier was incapacitated.

    Similarly, the Court held that the University’s failure to convene a hearing could be “clearly unreasonable.” The University’s decision was based upon the conclusion that no reasonable board member could make a finding of responsibility by Doe under a preponderance of the evidence standard. Since there was evidence to support a finding of incapacitation, the University’s failure to initiate disciplinary proceedings was erroneous and could be “clearly unreasonable.” Cavalier further argued that the delay in initiating disciplinary proceedings meant there was not a no-contact order in place, putting Cavalier at risk of further harassment.

    The Court noted that the circuit and district courts are split on the meaning of Davis's "subsequent-harassment" requirement, and the D.C. Circuit has yet to weigh in on the issue. Under one line of authority, a plaintiff must establish that she suffered additional harassment as a result of the defendant's deliberate indifference. Under the competing line of authority, a plaintiff only needs to establish that the university's deliberate indifference left the plaintiff "vulnerable" to future harassment. The parties did not address the split in authority in their briefings or at oral argument. Because the parties failed to address whether the mere risk of harassment is sufficient under Davis, and whether Cavalier was subject to any actual or risk of harassment during that period of time that elapsed from when the University allegedly should have issued a no-contact order and when it subsequently did so in August 2013, the Court could not determine whether this aspect of Cavalier's claim had sufficient merit to go to a jury.#Accordingly, the Court denied the University’s motion for summary judgment. Cavalier’s negligent infliction of emotional distress claim failed because she could not show that the University undertook an affirmative duty to conduct the investigation in a reasonable manner