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Butters v. James Madison University

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

November 6, 2015


Page 611

          For Sarah Elizabeth Butters, Plaintiff: Christopher Jamieson Toepp, LEAD ATTORNEY, Allen, Allen Allen & Allen, Fredericksburg, VA; Wilbur Coleman Allen, Jr., LEAD ATTORNEY, Allen, Allen, Allen & Allen, Richmond, VA.

         For James Madison University, Defendant: Nicholas Foris Simopoulos, LEAD ATTORNEY, Nerissa Neal Rouzer, Office of the Attorney General - Richmond, Richmond, VA.

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         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 in specific ways " 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 recording was subsequently disseminated to other JMU students. As discussed in more detail below, Butters alleges that she complained to JMU about both the assault and the continued dissemination of the recording, and that JMU failed to redress the situation adequately.

         JMU has moved to dismiss the complaint, arguing that its response to Butters's complaints was sufficient to avoid liability under Title IX. In particular, JMU emphasizes that although Butters first

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made JMU officials aware of the assault and dissemination of the recording a few weeks after the incident, she elected not to initiate a formal complaint at that time. JMU further relies on the allegations that, once she filed a formal complaint in January 2014, the school undertook an investigation, conducted disciplinary proceedings, found that the assault had occurred, and ultimately imposed sanctions on all three men involved, including expulsion following graduation. JMU thus argues that Butters has failed to state a claim upon which relief can be granted.

         The court heard oral argument on the motion, and it is now ripe for disposition. For the reasons set forth below, the motion will be denied.

         I. BACKGROUND

         The court accepts the well-pleaded, nonconclusory factual allegations in the complaint as true when ruling on a motion to dismiss. Aziz v. Alcolac, Inc., 658 F.3d 388, 391 (4th Cir. 2011); Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008). According to the complaint, Butters was a student at JMU from August 2010 through her withdrawal from the University on May 30, 2014, and was a member of a sorority on campus. (Dkt. No. 2, Compl. ¶ ¶ 6, 18.) In March 2013, during her third year at JMU, Butters joined a large group of JMU students in Panama City, Florida, for spring break. ( Id. ¶ 19.)

         On Sunday, March 3, 2013, the day after her arrival, Butters and a large group of JMU students--the " vast majority" of whom were members of various fraternities and sororities on campus--convened on the beach in front of the complex where Butters was staying with friends. ( Id. ¶ ¶ 19-21.) Butters " consumed alcohol, had very little to eat, and spent the majority of the day under the hot sun. By the afternoon, she was visibly intoxicated." ( Id. ¶ 22.)

         She returned to her condominium complex and was invited to the condominium of three fellow JMU students--Jay Kyler Dertzbaugh, Michael Joseph Lunney Jr., and Nicholas John Scallion--all of whom were members of the Sigma Chi fraternity. ( Id. ¶ ¶ 23-24.) The three men later " cornered" her in the bathroom of their condominium, " removed her bathing suit top, and took turns groping and fondling her bare breasts." ( Id. ¶ 25.) She alleges that one or more of the men attempted to remove her bathing suit bottom, that her bathing suit top was taken from her, and that one or more of the men stopped her in her attempts to put it back on. ( Id. ) One of the men " forcibly pulled Ms. Butters onto his lap, as he fondled her exposed breasts." ( Id. ) At least one of the three men also made a video recording of the assault using his cell phone. ( Id. ¶ 27; see Dkt. No. 2-1, sealed copy of recording.)

         The complaint further alleges that, throughout the duration of the assault, Butters repeatedly told the men that their behavior " was not alright [sic]," requested that they " stop," and said " no." She was visibly intoxicated, unsteady on her feet, and her words were slurred. She did not consent, nor was she capable of consenting to any of the sexual activity that occurred in the bathroom. (Dkt. No. 2, ¶ 26; Dkt. No. 2-1.)[2]

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          During the remainder of the spring break week, " rumors of the video began to circulate amongst the [JMU] student population present in Panama City, Florida." ( Id. ¶ 29.) When Butters confronted Dertzbaugh about the sexual assault and the recording, he denied both. ( Id. )

         After the students returned to campus from spring break, the video of the sexual assault of Butters circulated " throughout the [JMU] community and, in particular, throughout the membership of the University's various fraternities and sororities." ( Id. ¶ 30.) One of the men, Scallion, texted Butters denying the existence of the video and offering a general apology for the " disrespect" and " drunken stupidity." ( Id. ¶ 33.) Within a week, Butters became aware that the video was circulating and " was tremendously concerned, embarrassed[,] and confused about what steps should be taken." ( Id. ¶ 32.)

         On March 27, 2013, Butters decided she needed assistance in handling the situation, and she contacted the president of her sorority, the president of Sigma Chi fraternity, and Paula Polglase, who was the JMU employee serving as the advisor to Butters's sorority. ( Id. ¶ 34.)[3] The fraternity president responded immediately and asked to meet with Butters. ( Id. ¶ 35.) After doing so and seeing the video, he expelled all three men from the fraternity and banned them from any further participation in any fraternity events. ( Id. )

         On April 12, 2013, Butters and Polglase met with Wendy Young, who was then the Associate Director of Judicial Affairs. ( Id. ¶ 36.) Butters conveyed to Young " in graphic detail" what the three men had done and further explained that the acts were not consensual. She also explained that the video was being widely disseminated among JMU students and described " the negative interactions, comments and pressure that she was receiving from her peers who had seen the video or were otherwise aware of the assault." ( Id. ¶ 37.) Butters now complains that Young, before even viewing the video, tried to discourage her from filing a complaint by describing a process that was time-consuming, would involve reliving the event multiple times, and would require significant time and effort from her. ( Id. ¶ 39.) Young also explained that a variety of sanctions were available, but told Butters that expulsion was very rare and highly unlikely in light of the circumstances she described. ( Id. ¶ 40.)

         Butters gave Young the video and asked if JMU could address the matter, including the assault and the video's dissemination, without her involvement. ( Id. ¶ 42.) Young responded that " JMU would neither investigate nor act upon the matter independently." ( Id. ) Butters decided not to pursue a formal complaint at that time. ( Id. ¶ 43.) She was given the name and contact information for a counselor, and she sought counseling. ( Id. ¶ 44.)

         Butters alleges that the three men remained on campus and, other than being expelled from their fraternity, participated fully in campus life, " while dissemination of the video continued unchecked." ( Id. ¶ 45.) The last day of classes for that semester was two weeks later, April 26, 2013. ( Id. ¶ 46.)

         At some point after that date and before December 2013, Young sent Butters an email asking if she had decided how she

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would like to proceed and " asking if Butters was alright [sic]." ( Id. ¶ 46.) Butters states that, during this period, she " struggled both socially and academically," and that the video of her assault and its circumstances " came to define her identity on campus." ( Id. ¶ 48.) She further alleges that she " encountered the perpetrators of the assault regularly, despite her efforts to avoid activities where potential encounters with them were likely." ( Id. ) She also alleges that she " continued to be sexually harassed and further victimized as the video of her assault was widely disseminated." ( Id. ΒΆ 47.) Although she does not reference any particular incidents, she states that people frequently asked her about the assault and that some students " expressed the opinion that ...

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