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Karasek v. Regents of University of California

United States District Court, N.D. California

July 28, 2016

SOFIE KARASEK, et al., Plaintiffs,
v.
REGENTS OF THE UNIVERSITY OF CALIFORNIA, THE, Defendant.

          ORDER ON MOTION TO DISMISS THIRD AMENDED COMPLAINT RE: DKT. NOS. 57, 58, 62, 64

          WILLIAM H. ORRICK United States District Judge.

         INTRODUCTION

         Plaintiffs Sofie Karasek, Nicoletta Commins, and Aryle Butler were victims of sexual assault while enrolled as undergraduate students at the University of California, Berkeley (the “University”). They allege that the University responded with deliberate indifference when they reported their assaults to school officials and seek to hold the University liable in money damages under Title IX, 20 U.S.C. § 1681. Previously, I denied the University’s motion to dismiss plaintiffs’ second amended complaint (“SAC”) with respect to Butler’s Title IX claim, but granted it with respect to Karasek and Commins’s Title IX claims, and with respect to the various state law causes of action brought by plaintiffs. Dkt. No. 38 (“Prior Order”). Plaintiffs’ third amended complaint (“TAC”) abandons the state law causes of action and focuses exclusively on plaintiffs’ claims under Title IX. The University again moves to dismiss Karasek and Commins, arguing that they have again failed to plausibly establish deliberate indifference and causation, as required to state a Title IX claim under Davis v. Monroe Cnty. Bd. of Ed., 526 U.S. 629 (1999).

         I agree with plaintiffs that the University bungled its responses to their assaults. The University’s failure to communicate with plaintiffs in a meaningful way prior to making its disciplinary decisions is a glaring deficiency in the University’s process. As this Order outlines, there are others. And one wonders what it takes to get expelled from the University if a conviction for felony assault of a fellow student is not enough. But all of that said, the deliberate indifference standard under Davis protects school administrations that do investigate and remedy complaints, and judges are not permitted to substitute their views for those of not clearly unreasonable administrators. Because I agree with the University that Karasek and Commins have not adequately alleged deliberate indifference, the motion is GRANTED WITH LEAVE TO AMEND.

         BACKGROUND

         I. FACTUAL BACKGROUND

         A. Karasek

         Karasek participated in a weekend trip to San Diego with the Cal Berkeley Democrats Club (the “Club”) from February 10 to 12, 2012, during which she was sexually assaulted by a student referred to in the TAC as “TH.” TAC ¶¶ 15-19 (Dkt. No. 55). On the night of February 10, 2012, she slept in the same bed with three other students, one of whom was TH, and awoke around 3:00 a.m. to find TH massaging her legs, back, and buttocks. Id. ¶¶ 18-19. Karasek states that she “froze in the moment, and TH continued to inappropriately rub her for approximately 30 minutes.” Id. ¶ 19. TH resigned from his position in the Club at some point that month. Id. ¶ 31.

         On April 20, 2012, Karasek and three other female students who had been sexually assaulted by TH met with Denise Oldham and Hallie Hunt (from the University’s Title IX Office and Center for Student Conduct, respectively) to report their assaults. Id. ¶ 25. Karasek was not told during the meeting that, in order to initiate a formal University investigation of TH, she would need to submit a written statement detailing her assault. Id. ¶ 26. “Just out of luck, one of TH’s victims told Karasek that she had submitted a written statement to the University detailing her assault.” Id. ¶ 27. Karasek thought that this was a good idea and submitted a formal, written complaint to Hunt on May 15, 2012, although Karasek still did not realize that a written complaint was required to initiate a formal University investigation. Id.

         The University did not contact Karasek regarding her complaint for the next eight months. Id. ¶ 32. At some point during that period, the Club president informed Karasek that “the administration had advised against removing TH from the Club because [the administration was] concerned that if [TH] went to another student group, he [could] assault someone and there would not be the same support structure for a survivor in that group.” Id. ¶ 29. This appears to be a reference to Karasek’s allegation that at some point “[i]n early February 2012” but apparently after her assault, the Club president met with Marisa Boyce of the Gender Equity Resource Center and told Boyce “that two women had reported being sexually assaulted by TH.” TAC ¶ 20. Karasek states that the Club president “told Boyce that she was thinking about removing TH from the Club altogether, ” but that “Boyce discouraged this approach and suggested that the Club use more informal, transformative justice models to deal with TH, ” at least in part because “pushing TH too far out of his social circle would not be ideal because he would not have any support around him if he engaged in this type of conduct again.” Id. ¶ 21.

         Following this meeting between the Club president and Boyce, [1] Christine Ambrosio of the Gender Equity Resource Center “emailed several administrators to ask about informal models for dealing with sexual assault that she could present to the Club president.” Id. ¶ 24; see also Mot. at 5 n.2; Hunt Decl. ¶ 5 (Dkt. No. 57-3).[2] Amrosio’s email is dated February 14, 2012 and states,

I just met with the president of one of the student organizations on campus. She shared with me that she heard (second hand) that one of the other officers in her org sexually assaulted one of their new members (frosh) at an off-campus event this past weekend. I asked her to encourage survivor to seek emotional support/check in if she needs a medical check-up. I also asked her to tell survivor about how I can explain about options (police, student conduct). I gave her my card and the 10 tips to Help a Friend Resources sheet and Social Services brochure.
The president does not know the details and she will be meeting with survivor later today. I spoke to her about Student Conduct as a way for survivor or her group to address the possible sexual harassment/sexual assault. I told her that I would check in with you all regarding her org’s responsibilities around this. She is considering asking the accused to resign from their officer position and contact[ing] Social Services regarding the impact on their officer group.
Lastly, she asked about transformative justice models. I only know about Philly Stand Up. Do you all know of others that I can share with her?

Hunt Decl. Ex. A at ¶ 0002200 (Dkt. No. 58-7). In response to Ambrosio’s email, Oldham sent an email dated February 15, 2012 that states,

I’m sure there are models out there, but I’m very wary of the use of these models for any kind of sexual harassment, let alone and extreme form like sexual assault. Not only do all the university colleagues with whom I regularly work feel this way, recent federal guidelines are indicating that any kind of mediation is not appropriate for these kinds of cases at educational institutions. Without telling her not to explore this kind of approach, which would be overstepping, I’d feel better if we could at least simultaneously talk to this student about the risks involved with using these kinds of resolution strategies for sexual harassment/assault. To just give her transformative justice models might implicitly suggest that the campus condones that approach.
I’m happy to join you in a discussion with this student, if it’s helpful.

Id. at UC0002202; see also TAC ¶ 24.

         On May 14, 2012, less than one month after Karasek and the three other students reported their assaults to Oldham and Hunt, Glen DeGuzman of the Center for Student Conduct met with TH. Id. ¶ 34. During the meeting, TH “admitted that he had problems” and had “acted foolishly, especially when he had consumed alcohol.” Id. He also “admitted to engaging in troublesome conduct even after being removed from office with the Club.” Id. Karasek states that DeGuzman “admitted [in his notes from the meeting] that the nature of [the] meeting was not to investigate, but rather was ‘focused on getting help so TH could move forward.’” Id. ¶ 35. DeGuzman subsequently “followed up several times with TH to check on TH’s progress with dealing with his admitted problems and to continue to offer his assistance to TH in that regard.” Id. ¶ 36.

         On September 11, 2012, Oldham provided both the outgoing Club president and the incoming Club president with an update regarding the investigation into Karasek’s complaint. Id. ¶ 37. Shortly thereafter, on October 1, 2012, Oldham sent an email to another administrator stating, “After examining the information submitted by the two women students and consulting DeGuzman about his positive impressions of the developmental discussion [he] had with [TH], I determined that this situation could be resolved without a formal investigation by my office.” Id. ¶ 39. Karasek states that Oldham also “acknowledged [in the email] that from her perspective, she considered the sexual harassment issue with TH to be resolved.” Id.

         On October 10, 2012, DeGuzman sent an Administrative Disposition Letter to TH informing him that he had been found to have violated the Student Code of Conduct for engaging in disorderly or lewd conduct. Id. ¶ 40. DeGuzman “offered TH a choice to either meet with DeGuzman to tell his side of the story and participate in the resolution of his case, or, to simply accept responsibility.” Id. DeGuzman explained to TH that if he chose to simply accept responsibility, he would be subject to the following sanctions: (1) disciplinary probation until December 2012, when TH was set to graduate; (2) one consultation with a mental health practitioner of TH’s choice; (3) one appointment with an Alcohol and Other Drugs Counselor; and (4) one meeting with Alan Creighton, a Health Educator, to discuss gender issues and sexual misconduct. Id. TH chose to meet with DeGuzman and did so on October 19, 2012. Id. ¶ 43. In addition, on October 18, 2012, TH sent an email to an Independent Hearing Officer, in which TH set out a timeline of events regarding the allegations against him and “asked the Officer to review the timeline to see if there were any procedural deficiencies with respect to how the University addressed [the allegations].” Id. ¶ 41.

         On October 24, 2012, DeGuzman sent another Administrative Disposition Letter to TH, again giving TH the option of simply accepting responsibility, but removing from the disciplinary sanctions the required meeting with Health Educator Creighton. Id. ¶ 44.

         At some point in November 2012, a Club board member informed Karasek that TH was set to graduate in December 2012. Id. ¶ 45. On November 6, 2012 - presumably after Karasek learned this information - Karasek went to Ambrosio’s office and “expressed her frustration and concern that she was not being treated fairly, and that she had not heard from anyone at the University regarding her complaint.” Id. ¶ 46. Karasek also “expressed frustration at the length of time that had passed, given that she knew that TH was graduating in December 2012.” Id. On November 6, 2012, Ambrosio informed Karasek via email that she was waiting for the Center for Student Conduct to give her an update on the investigation. Id. ¶ 47. On November 15, 2012, Karasek emailed Ambrosio to follow up. Id. ¶ 48. Ambrosio did not respond, and on December 2, 2012, Karasek emailed Ambrosio a second time but again received no response. Id. ¶ 49.

         Finally, on December 12, 2012, Karasek received her first communication from the University regarding her assault since she reported it on April 20, 2012. Id. ¶ 50. The Title IX Office sent her a three sentence email stating that “th[e] matter had been explored and resolved using an early resolution process, ” and that the Title IX Office had “communicated the outcome of the early resolution process to the Center for Student Conduct.” Id. The email did not reveal to Karasek what the outcome was. Id.

         On December 17, 2012, three days after TH had graduated, a representative from the Center for Student Conduct sent Karasek an email stating that TH had been charged with violating, and had been found to be in violation of, the Campus Code of Student Conduct. Id. ¶ 53. However, the email did not explain what, if any, disciplinary action had been taken against TH. Id. Karasek filed a federal Clery Act complaint against the University in May 2013, and in September 2013, she contacted Hunt to inquire into whether any disciplinary action had been taken against TH. Id. ¶¶ 54-55. Hunt responded that TH had been placed on disciplinary probation and had “engaged in some counseling measures, ” but she did not provide “any specific detail as to what counseling measures had been taken.” Id. ¶ 56.

         Karasek states that she was not provided with updates regarding the University’s investigation, was not informed that she could report her assault to law enforcement, was not given an opportunity to present her claim at a disciplinary hearing, was not given an opportunity to appeal the University’s disciplinary decision, and was not informed of the outcome of the investigation until nine months after TH had graduated. Id. ¶¶ 57-58. She emphasizes that while TH was “allowed to participate in the resolution of [her] complaint against him, at no time during the entire pendency of the ‘early resolution process’ was [she] allowed to participate in any investigatory or disciplinary process.” Id. ¶ 52. She also emphasizes that, during the entire pendency of the investigatory and disciplinary process, TH was “allowed to remain on campus, unrestricted, creating a sexually hostile environment for [her].” Id. ¶ 59.

         While Karasek does not allege that she suffered any further assaults by TH or had any further contact with him, she states that as a result of the University’s conduct, she has suffered psychological and emotional damages and has experienced a loss of educational opportunities and/or benefits, including but not limited to: (1) “[b]eing forced to change her major from Economics to the less academically rigorous Political Economy;” (2) “[s]uffering a noticeable drop in her GPA;” (3) “[b]eing forced to drop at least one class;” (4) “[b]eing forced to miss assignments and ask for extensions on assignments;” and (5) “constantly operating with a heightened sense of fear, anxiety, and stress knowing that her assailant remained unrestricted on campus, and that there were other possible perpetrators in her classes that had not been removed.” Id. ¶ 60. She also states that “[o]n one occasion, [she] saw TH from afar as she was walking to class, ” and that, “[b]ecause the University had taken no steps to ensure that TH would not continue to harass, or otherwise harm Karasek, [she] took her safety and well-being into her own hands, and in an effort to avoid her assailant, she was forced to change her usual path to class and take a longer route.” Id. ¶ 61.

         B. Commins

         On or around January 20, 2012, Commins was sexually assaulted in her off-campus apartment by a University student identified in the TAC as “John Doe 2.” TAC ¶ 83. She states that she invited John Doe 2 to her apartment, and that without her consent, he performed oral sex on her, attempted to physically coerce her to perform oral sex on him, and digitally penetrated her. Id. ¶¶ 85-86. The next day, Commins reported the assault to the University’s Tang Student Health Center (the “Health Center”). Id. ¶ 87. The Health Center performed a cursory exam but did not administer a rape kit. Id. ¶ 88. On January 20, 2012, Commins reported her assault to the Berkeley Police Department and went to Highland Hospital, where a rape kit was administered, revealing evidence of trauma. Id. ¶¶ 89-90.

         On January 16, 2012, four days prior to John Doe 2’s assault on Commins, John Doe 2 physically assaulted two other students[3] at a party at a University fraternity house. Id. ¶ 91. The students reported the incident to the University, and on January 31, 2012, the University placed John Doe 2 on interim suspension for his sexual assault of Commins and his physical assault of the other two students. Hunt Decl. Ex. B at ¶ 0000639-42 (Dkt. No. 58-7); see also TAC ¶ 92. The Notice of Interim Suspension informs John Doe 2 that he is “strictly prohibited from entering upon any part of the Berkeley campus.” Hunt Decl. Ex. B at ¶ 0000641. On February 3, 2012, the University held an Interim Suspension Hearing and modified the interim suspension to allow John Doe 2 to “attend his classes only” and to be on campus for five minutes before and after each class. Hunt Decl. Ex. B at ¶ 0000644; see also TAC ¶ 94. Commins states that the University did not notify her of the Interim Suspension Hearing and did not inform her of either (1) the “arrangement made with John Doe 2 allowing him to remain on campus to continue his studies, ” or (2) her ability to request a no-contact order. TAC ¶¶ 93-94.

         On February 22, 2012, Commins submitted an Incident Report Form, officially reporting her assault, to the Center for Student Conduct. Id. ¶ 95. Shortly thereafter, either the Title IX Office or the Office of Student Conduct called Commins and “asked if she was comfortable with the University delaying its investigation until after the criminal proceedings had concluded.” Id. ¶ 96. “Commins responded that she was not comfortable with any delay in the commencement of the University’s investigation.” Id. She states that “[m]eanwhile, University administrators were communicating with [John Doe 2’s attorney], ” who was asking that the University’s investigation be stayed until the resolution of John Doe 2’s criminal proceedings. Id. ¶ 98.

         On April 2, 2012, an investigator working for John Doe 2’s attorney called Commins and “attempted to pressure her into consenting to allow John Doe 2 to continue his studies at the University.” Id. ¶ 100. The investigator also asked Commins if she would be comfortable with the University staying its investigation until John Doe 2’s criminal proceedings were completed. Id. ¶ 101. Commins alleges that “[t]his contact by John Doe 2’s agent amounted to additional intimidation and harassment . . . subsequent to her report of sexual assault.” Id. ¶ 102. Following the investigator’s call, Commins sent an email to Julio Oyola, Student Conduct Specialist, informing Oyola of the call. Id. ¶ 103. Commins stated in the email that she was not comfortable with the University delaying its investigation until after John Doe 2’s criminal proceedings had concluded, and that she was “not sure she was comfortable with John Doe 2 being allowed to remain on campus at all.” Id.

         Commins alleges that, “despite [her] clear wishes that [the University’s] investigation ensue, independent of John Doe 2’s criminal proceedings, the University honored John Doe 2’s request and stayed [its] investigation.” Id. ¶ 104.

         On May 11, 2012, the University again modified John Doe 2’s interim suspension, this time to strictly prohibit John Doe 2 from attending classes or entering campus until the sooner of (1) February 11, 2013, or (2) “the date upon which a formal or informal resolution of the charges against [him] has been reached.” Hunt Decl. Ex. C at ¶ 0000964 (Dkt. No. 58-7); see also TAC ¶ 105. The Notice of Interim Suspension states that “[t]his interim suspension has been imposed in part to accommodate your request to postpone the hearing upon your charges until such time as criminal charges pending against you have been resolved.” Id. Commins alleges that the University delayed in modifying John Doe 2’s interim suspension in this way in order to allow him to complete his classes for the spring semester. Id. ΒΆ 106. She also ...


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