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Butters v. James Madison University

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

September 22, 2016



          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 Adam Lindberg in JMU's Office of Fraternity and Sorority Life, and James McConnell, JMU's Dean of Students, were also notified. (Lindberg Decl. ¶¶ 6-10, Dkt. No. 59-4.) The parties dispute the effectiveness of the fraternity-imposed sanctions, as discussed in more detail in Section II.B. infra.

         The following day, March 28, 2013, Polglase contacted Wendy Lushbaugh, the Associate Director of the Judicial Affairs. Polglase reported to Lushbaugh that three JMU students had sexually assaulted Butters, that the incident was recorded on video, and that the video had been distributed to others in JMU fraternities and sororities. (Lushbaugh Dep. 42.) The two women then scheduled a meeting with Butters for March 29, although Butters cancelled that meeting. (Polglase Incident Report, Dkt. No. 59-7; see also Butters Dep. 84 (stating she doesn't recall whether she cancelled or not).) Butters and Lushbaugh rescheduled the meeting for April 12, 2013. (Polglase Dep. 81, 85; Polglase Incident Report).

         On April 1, Polglase met with JMU's Title IX Coordinator, James Robinson, and notified him of the situation. She explained the actions she had taken and explained what she had told Butters in terms of advising of her of her options and resources. At the time (and through Polglase's interactions with him), Robinson's understanding was that Butters was not ready to move forward against the Assailants, did not want to get them into trouble, and wanted time to explore her options. He asked Polglase to return with Butters once she was ready to move forward or if she had questions. (Robinson Decl. ¶¶ 8-9.)

         Butters and Lushbaugh met on April 12, 2013, and Polglase was also present. (Polglase Dep. 87.) Butters testified that she remembers discussing the incident itself, and the fact that there was a video circulating of it. (Butters Dep. 89-90; Lushbaugh Dep. 71 (recalling that Butters had described that she had been sexually assaulted by three JMU students in Florida and that the video had been circulating among JMU students).) Butters requested OJA to proceed with the case against her Assailants solely on the video and without her involvement. (Butters Dep. 93; Lushbaugh Dep. 49-50, 91; Polglase Dep. 87.) Lushbaugh told Butters that the OJA could proceed without her only if the video itself was clear as to her description of the assault, which was that she was intoxicated and did not consent. She also explained that Butters would have to complete the paperwork consenting to the process. (Polglase Dep. 88; Lushbaugh Dep. 84-85, 87.) If the video was not clear, then Butters's involvement, at least in the form a written statement, would be necessary to provide context and to prove intoxication and lack of consent. (Lushbaugh Dep. 49-51.)

         Lushbaugh also advised Butters that if she prepared the paperwork and consented to the process, she would not be required to attend any hearings. (Id. at 90-91, 139-140, 141.) She let Butters know that the decision to move forward was within her control, and Lushbaugh believed that giving a sexual assault victim control over the situation was important. (Id. at 89-90.)

         During the meeting, Butters reported to Lushbaugh that she had heard Nicholas Scallion threatened to “ruin her life” with the video if she filed charges. (Butters Dep. 142.) She also told Lushbaugh that she was anxious and fearful of the Assailants and was worried they would retaliate against her if she brought formal charges against them or if they learned she had made a report to OJA. (Id. at 141-42, 164; see also Polglase Dep. 75-76.)

         At the conclusion of the meeting, Butters told Lushbaugh she was not ready to file a complaint. (Butters Dep. at 93 (saying she expressed that she “did not want to take on [the] burden” of going through the student conduct process, but that “she was interested in it moving forward without [her] efforts”); Lushbaugh Dep. 106, 119; Lushbaugh Decl. ¶ 6.) Butters also requested that the meeting be confidential, in the sense that she did not want the Assailants to know she had met with anyone from OJA, (Butters Dep. 163-64), and that desire for confidentiality was something she expressed later, as well. (Id. at 94-95.) Butters testified at her deposition that she does not recall whether she asked Lushbaugh to do anything about the video. (Id. at 90.)[7]

         In addition to explaining the process, Lushbaugh arranged for Butters to meet with a counselor. She also notified Robinson, the Title IX Director, of the meeting. (Lushbaugh Dep. 69-71, 107; Butters Dep. 87-88.) Butters testified that she did meet with the counselor occasionally, although she also cancelled appointments “a lot.” Butters testified she cancelled because she “didn't like talking to a counselor.” (Butters Dep. 89, 96-99, 104.)

         On April 16, 2013, Polglase gave Lushbaugh and Josh Bacon, the director of the OJA, a copy of the video. (Polglase Dep. 102-03.) They separately reviewed it and determined that the video itself was not sufficient to move forward with a case against the three men without Butters's participation and that they were going to require her to file formal charges with the OJA in order to proceed. (Lushbaugh Dep. 49-50, 91-92.) Lushbaugh advised Butters of this. (Id. at 91-92; 101.)

         Shortly thereafter, on April 23, Lushbaugh emailed Butters to ask how she was doing and to ask whether she had made a decision about filing a complaint. (Lushbaugh Dep. Ex. 3, Dkt. No. 62-6 at 204.) She had also left her a voice-mail message. (Lushbaugh Dep. 101.) Butters did not directly respond to either. (Id.) Instead, Butters emailed Lushbaugh on May 6, asking Lushbaugh to call her, which Lushbaugh did. (Id. at 114.) Lushbaugh called her back and described Butters as being “in a panic, ” and asking Lushbaugh whether anyone from OJA had contacted the Assailants or told them that Butters had met with the OJA. (Id. at 115-16.) Butters seemed comforted once Lushbaugh assured her that no one from OJA had contacted the Assailants. (Lushbaugh Decl. ¶ 7.)

         Butters spent the summer at home, but after she returned to JMU, she had no contact with any of the Assailants during the Fall 2013 semester.

         C. Butters Files a Formal Complaint, and JMU's Adjudicates Charges Against Her Assailants.

         After Butters returned to campus for the Fall 2013 semester, on September 6, 2013, Lushbaugh emailed Butters and asked whether she had made a decision as to how to proceed and asked if she had any questions. (Butters Dep. 97; Lushbaugh Decl. ¶ 9.) Butters did not respond to this email until November 11, 2013. (Lushbaugh Decl. ¶ 9.) According to her own testimony, she did not respond to the OJA because she “felt like no one cared so I didn't really care.” (Butters Dep. 104.) She testified that she felt like she had given OJA “what it needed to move forward, i.e., the video, ” and she was not “up to meeting with anyone at JMU at the time.” (Id.)

         On November 4, 2013, Butters's father, William Butters, emailed JMU's Senior Vice President for Student Affairs and University Planning, Mark Warner, and inquired about the status of her complaint. (Emails, Dkt. No. 59-14.) Warner passed on the inquiry to James McConnell, who in turn directed Mr. Butters to Josh Bacon. (Warner Dep. 42, Dkt. No. 62-8.) Warner and McConnell also both separately responded to Mr. Butters. (Emails, Dkt. No. 59-14.) Bacon called Mr. Butters, explained the policy, and asked him to have his daughter come to OJA to move forward. (W. Butters Dep. 57, Dkt. No. 59-8.)

         On November 11, 2013, Butters responded to Lushbaugh's September 6, 2013 email and said she wanted to schedule a meeting with the OJA. A meeting was arranged for November 18, 2013, which Butters canceled. There were other attempts to schedule a meeting, but either Butters did not show up or, as to other dates subsequently offered, did not respond until after the dates had passed. (Lushbaugh Decl. ¶ 10.)

         On December 17, 2013, Butters told Lushbaugh that she was ready to file a complaint with the OJA. (Id. at ¶ 11.) Because the holiday break was about to begin, Lushbaugh and Butters agreed to meet on January 6, 2014. (Id. at ¶ 12.) Butters did not show up for the January 6, 2014 meeting, which was rescheduled for January 10, 2014. On that date, Butters consented to the process and filed a complaint against her Assailants. Pursuant to JMU's Policy, Lushbaugh arranged for Butters to have a support person and put her in touch with JMU employee Liz Howley. (Butters Dep. 113-14.) Howley served as a support person to Butters throughout the process, and Butters was very happy with Howley. (Id. at 114, 121-22.)

         Lushbaugh notified Robinson and Title IX officer Amy Sirocky-Meck of Butters's decision, and, on January 15, 2014, JMU charged the three men with sexual assault and harassment. JMU warned them that any contact with Butters would result in a further charge. JMU states that Butters admitted the no-contact order was effective; in fact, Butters admitted that none of the men contacted her ...

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