Stafford v. George Washington University ( 2019 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JABARI STAFFORD,
Plaintiff,
v. Case No. 18-cv-2789 (CRC)
THE GEORGE WASHINGTON
UNIVERSITY, et al.,
Defendants.
MEMORANDUM OPINION
Jabari Stafford alleges that he was the victim of racial discrimination during his time as a
walk-on tennis player at George Washington University. He brings a bevy of federal- and D.C.-
law claims against the University, two of his former coaches, and two administrators in the
athletics department. One of the individual Defendants, Associate Athletics Director Nicole
Early, and the University (together, “GWU” or “the University”) have moved to dismiss all of
Stafford’s claims. Stafford opposes dismissal and also seeks leave to amend his complaint. For
the reasons that follow, the Court will grant in part and deny in part GWU’s motion to dismiss
and will grant in part and deny in part Stafford’s motion for leave to file an amended complaint.
I. Background
A. Factual History
As required on a motion to dismiss, the Court draws this factual background from the
complaint, “assum[ing] the truth of all well-pleaded factual allegations.” Sissel v. U.S. Dep’t of
Health & Human Servs., 760 F.3d 1, 4 (D.C. Cir. 2014). The facts presented here are taken
almost exclusively from the proposed amended complaint, although at times the Court draws
from the original complaint—in particular where it appears that Stafford has deleted facts that
may have been unfavorable to him. See Hourani v. Mirtchev, 943 F. Supp. 2d 159, 171 (D.D.C.
2013) (stating that a plaintiff “may not plead facts in their amended complaint that contradict
those in their original complaint” nor can a plaintiff “blatantly change[ ] his statement of facts in
order to respond to” a motion to dismiss (internal quotation marks omitted)). The Defendants
strenuously contest many of the facts Stafford alleges.
Mr. Stafford, who is African-American, attended George Washington University
(“GWU”) from September 2014 until December 2017. Proposed Amended Complaint (“Am.
Compl.”), ECF No. 11-6, ¶ 4. Stafford chose to attend GWU after meeting with its then tennis
coach Gregory Munoz and members of GWU’s administration. Id. ¶¶ 18, 21. He joined the
GWU tennis team in September 2014, “two weeks into the Fall season.” Id. ¶ 25. He was one of
two African Americans and one of three players of color (the other a Persian American) on the
nine-person roster. Id.
Shortly after joining the team, Stafford alleges that he began to observe and experience
racist treatment. Id. ¶¶ 26-29. One week in, Munoz convened Stafford and the other players of
color—who together were the only American players on the team—and threatened to punish
them if they “did not get off to a good start.” Id. ¶ 26. Soon thereafter, Stafford says Munoz
announced that he “hate[d] Americans” and “subjected [non-white players] to constant threats
which even included emails only directed to them and no one else on the team.” Id. ¶ 28.
Stafford says he also witnessed early on Munoz and an assistant coach “bull[y]” and “belittle”
his Persian-American teammate. Id. ¶ 29. This teammate, Stafford says, “was kicked off the
team the first week of his sophomore year for unknown reasons.” Id. ¶ 30.
Also “in or around September 2014,” Stafford maintains the same assistant coach told
him and the team “a story about a Black tennis player . . . whom [the coach] and his teammates
2
in college would verbally and physically abuse because he was black,” including by calling him
racial epithets and remarking on how dark his skin was. Id. ¶ 31. Stafford also heard from his
teammate that the same assistant coach had once caused the team van to crash, and Stafford
claims that the coach was such a “careless” driver that he “became very frightened every time he
got into the vehicle after hearing the news.” Id. ¶ 32.
Though a time period is not specified,1 Stafford says that his “white teammates would
often post racially insensitive jokes and rhetoric on social media.” Id. ¶ 33. Stafford recounts
one incident that occurred his freshman year—so either the fall of 2014 or the spring of 2015—in
which a teammate posted a “racist picture on Facebook . . . of a black version of [the cartoon
character] Spongebob that read, “Watch Black Spongebob on Niggalodeon.” Id. Stafford
alleges that the head coach, Munoz, “was aware of these racist postings because he was
Facebook friends with the tennis players and told the players that he monitored social media
postings[.]” Id. Stafford claims that events like these “eviscerated [his] desire to participate in
team activities and caused him to try to limit his interactions with his teammates as much as
possible.” Id. ¶ 35.
“In other instances, later in [his] tenure,” Stafford says “various players would often
make racist comments in the team group chats.” Id. ¶ 34. One teammate, whom Stafford names
as a defendant in the proposed amended complaint, purportedly “referred to a black person as a
gorilla and referred to black poetry as ‘black shitty poetry.’” Id. Other teammates, Stafford
1
The Court has done its best to present these facts in chronological order, but both the
initial and the proposed amended complaint appear to periodically jump backward and forward
in time, making such a presentation difficult.
3
alleges, “would often throw racial slurs in the group chat . . . when Plaintiff was excluded from
[it].” Id.
Once, in January 2015, Stafford confronted a teammate who he says used a racial slur
while traveling to practice, and Munoz “chastised [Stafford]” for doing so. Id. ¶ 36. Stafford
was suspended from the team a week later. Id. ¶ 37. In the amended complaint, Stafford says
Munoz justified the suspension on the grounds that Stafford had been “disrespectful to his
teammates,” “had anger control issues, as well as profanity issues,” and “was selfish” and did not
support his teammates. Id. Stafford says these claims came out of left field, and that Munoz had
only once before expressed disapproval of his behavior—namely, when Stafford reprimanded his
teammate for using a racial slur. Id. ¶ 38. In the original complaint, however, Stafford said
Munoz offered other, additional reasons for the suspension—including that Stafford “did not
show pride in the University” and “disrespected the tennis director” at the team’s practice
facility. Compl. ¶ 25.
Stafford and his father thereafter requested a meeting with then Athletics Director Patrick
Nero to challenge his suspension. Am. Compl. ¶ 41. Although Nero declined the request,
Stafford and his father did meet with Munoz and Associate Athletics Director Early. Id. ¶ 42.
At that meeting, Stafford says Munoz “falsely denied the existence of any racial animus and
repeated the ‘anger control’ and ‘disrespecting teammates’ pretexts from the aforementioned
January 18, 2015 [suspension] email.” Id. Stafford apparently asked to be reinstated at the
meeting, but Early “did not order reinstatement of [Stafford], leaving the issue of whether, or
not, [he] would get reinstated from the suspension entirely to the discretion of Defendant
Munoz.” Id. ¶ 43. Stafford maintains that this “grossly improper and unjustified suspension,”
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caused him to become “depressed and withdrawn, which adversely affected his ability to perform
academically.” Id. ¶ 49.
While his suspension remained in effect, Munoz allegedly “presented [Stafford] with an
ultimatum”: become a member of a “white fraternity” to prove his social skills had improved or
face continued suspension. Id. ¶ 51. Despite having no interest in joining the fraternity, Stafford
went through recruitment and received a bid to pledge the house. Id. ¶ 52. Munoz then added
two further conditions to his reinstatement. Stafford would have to apologize to his teammates
for his “purported disrespectful conduct towards them” and his teammates would have to agree
to lifting his suspension. Id. ¶ 53. Having to “apologize to his teammates was extremely
difficult and humiliating for [Stafford] especially because he had not done anything wrong to any
of his teammates and coaches who had used racial slurs and never suffered any consequences as
a result of their discriminatory actions.” Id. ¶ 54.
Stafford’s “hard efforts” nevertheless paid off, and he was reinstated after about a month-
long suspension. Id. ¶ 55. According to Stafford, though, the “verbal abuse and discriminatory
treatment” picked up where it left off. Id. Even worse, it escalated. One representative
example, Stafford alleges, was when a teammate asked him, “Were all of your ancestors’ slaves
at one point?” Id. ¶ 59. Stafford also observed “serious racquet and verbal abuse from various
players on the team,” id. ¶ 62, and yet, he says, they were never “disciplined for [their] disruptive
and disrespectful behavior,” id. ¶ 61.
Later in his freshman spring season, “[i]n or around March 2015,” Stafford says a
teammate yelled at him to “Get off the court, monkey!” Id. ¶ 64. Stafford alleges that Munoz
overheard the remark but did nothing about it, and that he feared retribution by Munoz if he
spoke up. Id. Then, in April 2015, during a training trip to Florida, Stafford says a teammate
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yelled “N****R!” so loud that Stafford’s teammates in the adjoining hotel rooms could hear it.
Id. ¶ 65. Again, Stafford says he was worried that Munoz would accuse him of being an angry
teammate if he attempted to confront the racial abuse. Id. Harassment like this, carried out by
nearly all of Stafford’s teammates, continued throughout the spring 2015 season. See id. ¶¶ 66–
69. Stafford claims the abuse caused him to “suffer[ ] from anxiety, extreme depression and
severe mental anguish” and “adversely affected his academic performance,” culminating in a
sub-2.0 grade point average. Id. ¶ 71.
The mistreatment continued in the fall 2015 season of his sophomore year, Stafford says.
He was reprimanded by an assistant coach for yelling in celebration after winning a match. Id. ¶
77. His teammates allegedly piled on, telling Stafford they were cheering for him to lose the
match—and yet they faced no discipline from the coaching staff. Id. ¶ 79.
The intra-team squabbling came to a head at the beginning of the spring 2016 season,
when Stafford and a teammate got into a shouting match and “approached each other in a
confrontational manner.” Id. ¶ 81. Munoz allegedly “separated the players by grabbing
[Stafford] and physically removing him from the area,” at which point he told Stafford he would
“kick him off the team.” Id. ¶ 82. Asked why, Munoz allegedly gave various reasons, including
that Stafford did not greet him in the morning, that Stafford thought he was too good looking,
and that Stafford was more interested in his fraternity than in the team. Id. When Stafford told
Munoz that “all the racism on the team” made him feel “extremely uncomfortable,” Munoz
apparently responded flatly that there was no racism on the team—and then asked Stafford
“whether he liked Donald Trump.” Id.
Stafford recounts other examples of the “repeated[ ] harass[ment]” he faced throughout
his sophomore season, spanning 2015 to 2016. He tells of a time when a white teammate asked
6
him “how it was possible that [Stafford] was Black and that he had money, as if the two were
mutually incompatible.” Id. ¶ 83. He also says that his teammates on numerous occasions made
racially stereotypical references to his genitals. Id. In addition to these episodes, Stafford says
the coaching staff gave him poor slots in the lineup, or did not play him at all, for no legitimate
reason. See id. ¶¶ 84-87.
In March 2016, Stafford says he again approached members of the GWU athletics
department, namely Early, to discuss “the racist mistreatment he was subjected to and the lack of
playing time.” Id. ¶ 87. Early arranged a meeting with Stafford and an assistant coach—by this
time Munoz was no longer the team’s head coach—at which the assistant coach said Stafford did
not play much because he hit the ball too hard, was undisciplined, and was not a team player. Id.
¶ 88. Stafford denies all these allegations as “pretext for his marginalization.” Id. When
Stafford’s father on various occasions tried to follow up with Early, she “mostly refused to
communicate with him.” Id. ¶ 89.
The fall 2016 season, Stafford’s junior year, saw a new head coach, David Macpherson,
take the reins. “Unfortunately for [Stafford,]” he says, “the rolling snowball that had started
early in his freshman year had by now escalated into a veritable avalanche of racism[.]” Id. ¶ 92.
Stafford realized at the beginning of the school year that he was not receiving team
communications, id. ¶ 93, and he soon learned from Macpherson the reason why: he was no
longer a member of the team, id. ¶ 94. Searching for an explanation, Stafford’s father attempted
to meet with the athletics department, which refused his request for a meeting. Id. ¶ 95.
Stafford and his father did ultimately meet with a vice provost at the University and an
athletics department representative. Id. ¶ 96. After they “talked about all of the overt racism, the
violation of various policies and procedures, the defamation of character and the emotional
7
distress and severe mental anguish” Stafford was suffering, Stafford says the school officials
“were mortified” and “confused with why nothing was being done and why [Stafford] was such
an enormous target.” Id. They also told Stafford that he was still on the team and could not be
removed from the team without having signed a waiver to that effect. Id.
Macpherson, however, did not budge—at least not right away. He instead set up a tryout
for Stafford, through which he could earn his way back on the team. Id. ¶ 97. Stafford, although
frustrated with having to go through this process, apparently did well enough to earn his
reinstatement. Id. ¶ 98. Stafford’s reinstatement came over his teammates’ protestations. He
says that in a private text message from Macpherson to one team member—which was later
shared in a “private teammate group chat” that Stafford was not a part of—Macpherson
acknowledged the team’s “opinion” of Stafford, but said that Stafford “showed a lot of potential”
and had the ability to “become a dangerous player.” Id. ¶ 101.
Now back on the team, Stafford says his teammates “worked on a plan to provoke” him
by “making racist statements, in hope that [Stafford] would get into a physical altercation or do
something that would get him kicked off of the team.” Id. ¶ 100. He alleges, for example, that
as soon as his teammates got word of his reinstatement, they arranged a meeting through a group
chat to “coordinate their attacks and kick their racial hatred and harassment into high-gear to try
and undermine [Stafford’s] reinstatement.” Id. ¶ 103. One teammate continued to say that he
was perplexed by the combination of Stafford’s race and the fact that he “had money.” Id. ¶ 104.
The same teammate would also yell the n-word when it was said in a rap song to which the team
was listening. Id. Stafford continued to feel that “he could not do anything about this racist
treatment because of the risk that he would be thrown off the team again.” Id.
8
At some unspecified time—apparently in the spring of 2017—Stafford played a practice
match to determine his position in the team’s lineup. Id. ¶ 106. His opponent “started taunting
[him] and trying to provoke him so he would react aggressively and ruin his chances.” Id.
Stafford ultimately “lost the match due to the constant bickering and taunting,” and then yelled at
the assistant coach for not intervening. Id. When Macpherson heard of the episode, he called
Stafford, at which point Stafford says he “told Macpherson about all of the conspiracies, racial
discrimination and defamation of [his] character.” Id. Macpherson allegedly told Stafford that
he would “try to be more aware of these things” and would “ultimately handle everything.” Id.
Macpherson later emailed Stafford to inform him that he would be suspended for the next
practice. Id. Stafford says no one else was ever punished. Id. Stafford maintains that the
suspension and the “stronger, more intense high-gear harassment devastated [his] spirit and
undermined his ability to perform academically,” causing his Spring 2017 grade point average to
fall below 2.0. Id. ¶ 107.
The “high-gear hatred and harassment” purportedly continued in the fall of 2017,
Stafford’s senior year. Id. ¶ 108. An Indian teammate told him that another teammate had called
Stafford a “cotton picking n****r,” and asked him to record Stafford “doing or saying something
negative” to get him kicked off the team. Id. The Indian teammate also reported to Stafford that
he “had been sexually harassed and assaulted by” another teammate on multiple occasions. Id.
¶110. Stafford says the coaching staff ignored these issues when they were brought to their
attention. Id. Stafford also alleges that around this time his family “was verbally attacked and
harassed” by an unidentified GWU employee. Id. GWU’s alleged failure to adequately address
issues like these, Stafford insists, caused him to “suffer severe anguish and distress,” culminating
in yet another sub-2.0 grade point average for the fall 2017 semester. Id. ¶ 112.
9
Because Stafford had compiled a sub-2.0 GPA in two consecutive semesters, and three
semesters overall, the University suspended him in January 2018. Id. ¶ 113. When Stafford met
with an academic advisor to prepare an appeal of his suspension, the advisor “was insistent that
the appeal should only contain contrite acceptance of personal responsibility” rather than discuss
the “trauma caused by the racially hostile atmosphere” that Stafford mentioned to her. Id. ¶ 114.
The University denied Stafford’s appeal. Id. ¶ 115.
B. Procedural History
Stafford filed suit on November 26, 2018, naming as defendants the University, Nero,
Early, Munoz, Macpherson, and “John Does 1–10,” ostensibly various of Stafford’s teammates.
He brought six claims: Count I alleges all Defendants discriminated against him on the basis of
race in violation of the District of Columbia Human Rights Act (“DCHRA”) D.C. Code Ann.
§ 2.1401.01 et seq.; Count II alleges the same in violation of Title VI of the Civil Rights Act of
1964, 42 U.S.C. § 2000d; Count III alleges the same in violation of Section 1981 of the Civil
Rights Act of 1991; Count IV alleges a breach of contract claim against only the University;
Count V alleges negligent infliction of emotional distress against all Defendants; and Count VI
alleges negligent retention against only the University. Compl. ¶¶ 95–134.
GWU and Early moved to dismiss the complaint in its entirety on January 22, 2019. See
ECF No. 4. Stafford responded on March 17, 2019 by filing a combined motion for leave to
amend his complaint and “response to Defendant’s motion for dismissal of complaint.” See ECF
No. 10. In his proposed amended complaint, Stafford names a teammate as a defendant, but does
not otherwise add to or subtract any of the six claims in his original complaint. See ECF No. 11-
6 (red-lined copy of proposed amended complaint). GWU and Early opposed Stafford’s motion
for leave to amend his complaint, and the matter is now ripe for the Court’s resolution.
10
II. Legal Standards
Federal Rule of Civil Procedure 15(a) gives courts discretion whether to grant leave to
amend a complaint. Leave “should be freely given in the absence of undue delay, bad faith,
undue prejudice to the opposing party, repeated failures to cure deficiencies, or
futility.” Richardson v. United States, 193 F.3d 545, 548–49 (D.C. Cir. 1999). A proposed
amended complaint is futile if it would not survive a motion to dismiss. When making that
assessment, courts apply the same standards as they would to review such a motion. See In re
Interbank Funding Corp. Sec. Litig., 629 F.3d 213, 215–16 (D.C. Cir. 2010) (citations omitted).
The standard applicable here is Federal Rule of Civil Procedure 12(b)(6). “To survive a
motion to dismiss [under 12(b)(6)], a complaint must contain sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is
plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. In evaluating a Rule
12(b)(6) motion to dismiss, a court must “treat the complaint’s factual allegations as true . . . and
must grant plaintiff the benefit of all inferences that can be derived from the facts alleged.”
Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (internal citation and
quotation marks omitted). A court need not, however, accept inferences drawn by the plaintiff
that are unsupported by facts alleged in the complaint, nor must a court accept a plaintiff’s legal
conclusions. See Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).
“A [complaint] filed pro se is to be liberally construed[,] and a pro se complaint, however
inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by
lawyers.” Abdelfattah v. U.S. Dep’t of Homeland Sec., 787 F.3d 524, 533 (D.C. Cir. 2015)
11
(internal citation and quotation marks omitted).2 “Even still, a pro se complaint ‘must plead
factual matter that permits the court to infer more than the mere possibility of misconduct.’” Id.
(quoting Jones v. Horne, 634 F.3d 588, 596 (D.C. Cir. 2011) (internal quotation marks omitted)).
Taking these legal standards together, then, the Court will ask whether Stafford, assuming the
truth of the allegations in his proposed amended complaint, has stated a claim to relief that is
plausible on its face. If he has not, leave to file the amended complaint will be denied as futile,
and the case will be dismissed.
III. Analysis
As an initial matter, GWU contends the whole complaint should be dismissed due to
Stafford’s “shotgun” style of pleading, referencing the complaint’s practice of incorporating by
reference all preceding paragraphs and counts of the complaint. Memorandum in Support of
Defendants George Washington University and Nicole Early’s Motion to Dismiss (“MTD”),
ECF No. 4-1, at 6. This pleading practice, GWU says, makes it impossible to tell which factual
allegations Stafford uses to support a particular legal claim. Id. Although the Court grants that
the complaint is hardly a picture of clarity, it is important to note that Stafford is proceeding pro
se, and that he therefore warrants a bit more leeway in his attempt to comply with federal court
pleading standards than would a represented litigant. At any rate, as will follow, other grounds
for dismissal exist, making it unnecessary to decide the motion to dismiss on this ground.
2
GWU questions whether Stafford is truly representing himself in this case. It points to
metadata from electronic versions of his pleadings suggesting that they were prepared by
someone working in a law firm. The Court declines, at this juncture, to conduct a factual inquiry
into this issue. It will, however, address it with Mr. Stafford at the next in-court scheduling
conference.
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A. Counts I and II: DCHRA and Title VI Claims
With respect to the DCHRA and Title VI discrimination claims, Compl. ¶¶ 95–104; Am.
Compl ¶¶ 121–131, GWU contends that Stafford has failed to state a claim under which relief
can be granted, MTD at 7; see Fed. R. Civ. P. 12(b)(6). The Court will start with the DCHRA
and then move to Title VI.
1. DCHRA
The D.C. Human Rights Act (“DCHRA”) prohibits discrimination on the basis of race by
“an educational institution” with respect to “the use of, or access to, any of its facilities, services,
programs, or benefits of any program or activity to any person otherwise qualified.” D.C. Code
§ 2-1402.41(a). To establish a DCHRA claim, a plaintiff must show he “was subject to an
adverse action motivated by [race] discrimination.” See Carter-Frost v. District of Columbia,
305 F. Supp. 3d 60, 67 (D.D.C. 2018). Such claims must be brought within the one-year statute
of limitations. D.C. Code § 2-1403.16(a). “This one-year period begins to run at the time the
plaintiff is made aware of the allegedly discriminatory act.” Di Lella v. Univ. of D.C. David A.
Clarke Sch. of Law, 570 F. Supp. 2d 1, 6 (D.D.C. 2008).
This presents a problem for Stafford’s DCHRA claim. Because Stafford filed suit on
November 26, 2018, he must allege a discriminatory adverse action that occurred on or after
November 26, 2017. That period corresponds to allegations made in paragraph 108 and after in
the proposed amended complaint,3 which cover roughly Stafford’s last month on the team before
his second, and final, academic suspension. Though Stafford often fails to provide exact (or
The Defendants’ motion to dismiss cited the paragraph numbers in the original
3
complaint, but the Court often substitutes the corresponding paragraph numbers in the proposed
amended complaint for ease of analysis.
13
even approximate) dates, he does allege in paragraph 108 that “[t]he high-gear hatred and
harassment . . . continued into the Fall semester of 2017,” so it is reasonable to assume that the
subsequent paragraphs apply to events within—or at least close to within—the limitations
period.
But the allegations in following paragraphs nonetheless fail to highlight a discriminatory
adverse action that can serve as a predicate for a DCHRA claim. Paragraph 108 alleges that a
teammate called Stafford a racial slur and that the same teammate tried to devise a plan to get
Stafford removed from the team. Paragraph 109 describes how “one of the GWU employees that
worked in the tennis office”—but who is not named as a defendant in the suit—“verbally
attacked and harassed” Stafford and his family during a practice session. Paragraph 110 details
the alleged harassment and sexual assault of one of Stafford’s teammates by the same teammate
referenced in paragraph 108. And paragraph 113, finally, explains that GWU “academically
suspended” Stafford for “completing two consecutive semesters with a grade point average of
less than 2.0 and/or completing any three semesters with a lower than 2.0 GPA.” These
allegations are not sufficient. Paragraphs 108 and 110 complain about the conduct of a
teammate, not the school or the individual Defendants; Paragraph 109, meanwhile, fails to allege
facts suggesting the employee’s alleged harassment of Stafford and his family had anything to do
with race; and paragraph 113, although it does identify an adverse action taken by least some of
the named Defendants, attributes the suspension to academic performance, not racial animus.
To be sure, Stafford does allege that, while his academic suspension may have been
warranted given his grades, his poor academic performance was the “result of Defendant’s
conduct,” including the allowance of “unfettered racial discrimination,” which left Stafford
“unable to perform academically[.]” Id. ¶ 112. Stafford appears to have amended his complaint,
14
at least in part, to emphasize this theory, alleging that he was persuaded by a GWU academic
advisor to accept responsibility in his appeal rather than “to appeal on the basis of the trauma
caused by the racially hostile atmosphere condoned by Defendant GWU.” Id. ¶ 114. Just the
same, it remains Stafford’s burden to anchor his DCHRA claim in some discriminatory adverse
action committed by the Defendants post-November 2017, and the suspension cannot be it
because Stafford himself offers a benign, non-discriminatory reason for that suspension.
According to Stafford’s own narrative of events, the school did not take either adverse action—
suspending him or denying his appeal—because of his race. See Carter-Frost, 305 F. Supp. 3d at
67 (explaining that DCHRA plaintiff must plead that he “was subject to an adverse action
motivated by [race] discrimination”).
That also explains why, to the extent Stafford has attempted to plead a DCHRA
retaliation claim, his complaint fails to do so. Stafford cannot show either that he engaged in
protected activity (like reporting alleged discrimination) or that there was a causal connection
between his engaging in protected activity and his suspension (since he admits it was for poor
academic performance, and any role the University may have played in that poor performance
occurred outside the limitations period), and the failure to show either precludes a viable
retaliation claim. Kimmel v. Gallaudet Univ., 639 F. Supp. 2d 34, 44 (D.D.C. 2009).
Therefore, to the extent Count I alleges that GWU directly discriminated against him—
rather than allowed harassment by his teammates and others to go unchecked, about which the
Court will say more later—that claim is dismissed.
2. Title VI
Title VI of the Civil Rights Act of 1964 provides that “[n]o person in the United States
shall, on the ground of race, color, or national origin, be excluded from participation in, be
15
denied the benefits of, or be subjected to discrimination under any program or activity receiving
Federal financial assistance.” 42 U.S.C. § 2000d. A private right of action exists under Title VI
only for intentional discrimination. Kimmel, 639 F. Supp. 2d at 42 (citing Alexander v.
Sandoval, 532 U.S. 275, 280 (2001)).
Title VI does not set a statute of limitations, which means the Court must apply the local
statute of limitations for a similar injury. See Wilson v. Garcia, 471 U.S. 261, 266–67 (1985)
(“When Congress has not established a time limitation for a federal cause of action, the settled
practice has been to adopt a local time limitation as federal law if it is not inconsistent with
federal law or policy to do so.”); Mwabira-Simera v. Howard Univ., 692 F. Supp. 2d 65, 71
(D.D.C. 2010) (“Where a federal statute does not specify a period of limitation after which a
claim is time-barred, federal law requires applying the local statute of limitation for the most-
analogous injury.”). GWU cites a case from this district for the proposition that, “[u]nder D.C.
law, a violation of a federal anti-discrimination law is subject to the three-year limitation period
applicable to a claim for personal injury.” Mwabira-Simera, 692 F. Supp. 2d at 71 (citing D.C.
Code 12-301(8)). That indeed appears to be the prevailing practice in this Circuit. See, e.g.,
Hajjar-Nejad v. George Washington Univ., 873 F. Supp. 2d 1, 15 (D.D.C. 2012) (“In this Circuit,
the statute of limitations for Title VI claims is three years.”); Richards v. Duke Univ., 480 F.
Supp. 2d 222, 238 (D.D.C. 2007) (“In the District of Columbia, a personal injury action has a
three-year statute of limitations and therefore, a Title VI or Title IX claim also has a three-year
statute of limitations in the District of Columbia.”).
The Court pauses for a moment to consider the wisdom of this practice. Until recently,
the prevailing trend was also to apply the three-year personal injury limitations period to federal
Rehabilitation Act claims. See, e.g., Adams v. District of Columbia, 740 F. Supp. 2d 173, 184
16
(D.D.C. 2010); Long v. Howard Univ., 512 F. Supp. 2d 1, 12 (D.D.C. 2007). Just last year,
however, this Court concluded that the one-year statute of limitations applicable to DCHRA
claims should apply to Rehabilitation Act claims. See Congress v. District of Columbia, 324 F.
Supp. 3d 164, 171–73 (D.D.C. 2018). That reevaluation was premised in large part on the
District of Columbia Court of Appeals’ decision in Jaiyeola v. District of Columbia, 40 A.3d 356
(D.C. 2012), which reasoned persuasively that the Rehabilitation Act and DCHRA’s “shared
purpose” of eliminating discrimination against individuals with disabilities made them much
more analogous than the Rehabilitation Act was to a generic personal injury suit, id. at 367.
Although it was true that the DCHRA banned discrimination on other bases like race and gender,
the D.C. Court of Appeals concluded that those differences in scope do not outweigh the fact that
both statutes directly proscribe disability discrimination. Id. at 365–66. Recognizing the
deference owed to interpretations of D.C. law by that jurisdiction’s highest court, this Court
reached the same conclusion. Congress, 324 F. Supp. 3d at 172. And it was not the first federal
court in this district to do so. See Ware v. Hyatt Corp., No. CV 12-0395, 2013 WL 12321372, at
*15 (D.D.C. Mar. 27, 2013).
The reasoning of Jaiyeola (and Congress and Ware) would seem to apply with equal
force to Title VI. Although Title VI prohibits exclusively racial discrimination in programs
receiving federal assistance, while racial discrimination is only one of many forms of
discrimination prohibited by the DCHRA, both statutes at their core share the same “purpose,
rights, and remedies,” i.e., the elimination of racial discrimination. Congress, 324 F. Supp. 3d at
172. Title VI is thus a closer cousin to the DCHRA than it is to D.C.’s general personal injury
statute, which “cover[s] a much wider swath of injuries, often including conduct that involves no
discrimination whatsoever.” Id. That means the one-year statute of limitations applicable to
17
DCHRA claims might well govern Stafford’s Title VI claim, not the three-year personal injury
limitations period.
Except GWU has not taken that position. A statute of limitations defense is an
affirmative defense, meaning that it is waived unless a defendant timely raises it. Because it is
GWU’s burden to raise the defense in the first instance, and because it has asked the Court to
apply the three-year limitations period—even though the one-year period would better serve its
interests—the Court will do so. The Court recognizes that it may seem strange to apply a statute
of limitations it has just concluded is probably incorrect. But GWU had good reason—namely, a
slew of district courts applying the three-year limitations period—for believing it should apply,
and it would work a hardship on Stafford to apply the shorter period, given that he has never had
an opportunity to argue the contrary. Accordingly, Stafford must tether his Title VI intentional
discrimination claim to events that occurred on or after November 26, 2015, or late in the fall
season of his sophomore year, which appears to correspond to paragraph 72 and later in the
amended complaint.
Stafford does allege that GWU “receives federal funding,” Am. Compl. ¶ 5, so the
question becomes whether he has adequately alleged that GWU intentionally discriminated
against him. Stafford must actually allege two things to do so: first, that he suffered some
sufficiently adverse action, and second, that the adverse action was taken because of his race.
See Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C. Cir. 2008) (“[T]he two essential elements
of a discrimination claim are that (i) the plaintiff suffered an adverse employment action (ii)
because of the plaintiff’s [protected characteristic.]”); Delbert v. Duncan, No. 13-5135, 2013 WL
6222987, at *1 (D.C. Cir. Nov. 14, 2013) (per curiam) (dismissing Title VI claim because it
“lacked any factual allegations linking the claimed adverse actions to his race”).
18
In spelling out his Title VI claim, Stafford alleges broadly that GWU’s “aforesaid
conduct” constituted intentional discrimination, id. ¶ 131, but he does not pinpoint which of the
dozens of events detailed in the complaint qualify. As the Court explained above, many of
Stafford’s allegations concern the actions of his teammates, and his January 2018 academic
suspension (and subsequent appeal denial) cannot serve as the basis for an intentional
discrimination claim because Stafford himself admits he was suspended because of his poor
academic performance, not the color of his skin. See Baloch, 550 F.3d at 1198 (discrimination
claim must link adverse action to discriminatory animus). Elsewhere, Stafford complains of
various times he was not chosen to play in a match or was given less desirable positions in the
team’s lineup, like having to play doubles, despite having beaten two of the team’s white players
in practice matches. See, e.g., Am. Compl. ¶¶ 84–89. But the Court concludes that allegations
like these cannot plausibly support an allegation of intentional discrimination, even under the
forgiving 12(b)(6) standard. If they could, that would mean any athlete unhappy with playing
time could plead an adequate Title VI so long as his coach slotted an (allegedly inferior)
teammate of another race ahead of him. That cannot be enough, especially where, like here, the
plaintiff makes no allegation that the coaches involved made any reference to the player’s race in
making the decision and instead offered benign, non-discriminatory reasons for the decision.
See id. ¶ 88. And even had Stafford given more reason to suspect race was a factor in the lineup
decisions, the Court remains doubtful that a lack of playing time on an athletic team would
amount to the sort of adverse action that can sustain a Title VI claim.
The Court likewise concludes that the one-day practice suspension Stafford received in
late 2016 or early 2017 cannot sustain an intentional discrimination claim. For one thing, as with
Stafford’s grievances about playing time, it strikes the Court that being held out of one practice
19
is not an adverse action that, even if taken for discriminatory reasons, Title VI would guard
against. The analysis might be different, as the Court will soon explore in more detail, if
Stafford had been removed from the team rather than told to sit out a single practice—but that is
not what happened in this instance. For another, it seems a stretch to infer that the one-day
punishment had anything to do with racial discrimination. By Stafford’s own account, it
stemmed from a dispute Stafford had with a teammate in a practice match, which ended with
Stafford yelling at an assistant coach. Id. ¶ 106. Before Macpherson handed down the
suspension, Stafford says he told Macpherson “about all of the conspiracies, racial discrimination
and defamation of [his] character.” Id. Macpherson then told Stafford “he would be more aware
of these things” and “handle everything.” Id. Ultimately, however, Stafford says his one-day
suspension was the only punishment Macpherson doled out for the practice spat. Id. From that,
Stafford asks the Court to draw the inference that his suspension was caused by intentional
discrimination. But given the plaintiff’s own explanation of events—that his suspension
immediately followed a short skirmish with a teammate and his yelling at an assistant coach—
the Court is unwilling, even at the motion-to-dismiss stage, to draw the inference Stafford
requests.
There remains one allegation, however, that warrants closer inspection: Stafford’s
temporary removal from the tennis team in the fall of 2016. GWU contends that this event, too,
was not severe enough to constitute an adverse action that is actionable under Title VI. MTD at
11–12. It cites Hajjar-Nejad v. George Washington Univ., 37 F. Supp. 3d 90, 128 (D.D.C.
2014), for the proposition that the standard for adverse action under Title VI is the same as that
required by Title VII, which is met only when an employee “experiences materially adverse
consequences affecting the terms, conditions, or privileges of employment or future employment
20
opportunities such that a reasonable trier of fact could find objectively tangible harm,” Czekalski
v. LaHood, 589 F.3d 449, 457 (D.C. Cir. 2009) (citation omitted). GWU says Stafford’s brief
suspension did not rise to this level, especially since Stafford was not a scholarship athlete and
hence enjoyed “no right or guarantee to even remain on the tennis team.” MTD at 12.
The Court disagrees. Under Title VI, a plaintiff must allege that he was “excluded from
participation in, . . . denied the benefits of, or . . . subjected to discrimination under any program
or activity receiving Federal financial assistance.” 42 U.S.C. § 2000d. Case law is sparse on
what qualifies as an adverse action under Title VI. GWU urges the Court to apply the Title VII
standard for employment discrimination, although the portion of Hajjar-Nejad it cites as support
for this position seems instead to import the Title VII adverse-action standard to a Section 1981
claim.4 Yet even if that standard also applies in the Title VI context, Stafford has adequately
pled that he suffered an adverse action. Hajjar-Nejad said a complained-of action must have
“significantly changed [plaintiff’s] status as a student or materially altered the terms, conditions,
or privileges [plaintiff] enjoyed as a student.” 37 F. Supp. 3d at 129. Stafford’s removal from
4
In the section of Hajjar-Nejad cited by GWU, the court explicitly said it was construing
the plaintiff’s claims as Section 1981 claims and that “Title VII jurisprudence provides guidance
in interpreting Section 1981.” 37 F. Supp. 3d at 128 (emphasis added). Nowhere in that portion
of the opinion did the Court discuss the standard for an adverse action in the context of a Title VI
claim. See id. at 127–29. To be sure, earlier in Hajjar-Nejad, the court did say that
“[d]iscriminaton claims pursuant to Title VI and Section 1981 are analyzed under the same
standards as claims brought pursuant to Title VII of the Civil Rights Act.” Id. at 124. The
“standards” to which the court was referring, however, were those that require either direct
evidence of discrimination or resort to the McDonnell-Douglas burden-shifting framework, not
the substantive standard for determining whether a plaintiff has complained of a sufficiently
severe adverse action. Indeed, all the cases cited by the Hajjar-Nejad court for the “same
standards” comment dealt with the decisional framework for a discrimination claim, not the
standard for determining what counts as an adverse action and how that might differ between
Title VI, Title VII, and Section 1981. Id. (citing cases).
21
the tennis team for an extended period of time clears that bar. See Am. Compl. ¶¶ 93–95. The
suspension “significantly changed [Stafford’s] status as a student,” id.; indeed, he went from
being a student-athlete to merely a student. And the suspension “materially altered the . . .
privileges [Stafford] enjoyed as a student,” id., because he, at least for a while, could no longer
participate on the tennis team.
GWU’s reliance on the University’s Student Athlete Handbook statement that
participation in its athletic programs is “considered a privilege rather than a right” is somewhat
of a red herring. See MTD, Ex. B. It does not matter whether Stafford was a scholarship athlete,
or whether certain procedures had to be followed to remove him from the team; what matters is
that he once enjoyed the privilege of playing on the team, and that privilege was taken from him.
Hajjar-Nejad, 37 F. Supp. 3d at 129 (stating that an adverse action is one that changes “status as
a student or materially altered the . . . privileges he enjoyed as a student”). GWU’s insistence on
some vague right-versus-privilege distinction is inconsistent with the text of Title VI, which
protects generally against “exclu[sion] from participation in,” the “deni[al] of benefits of,” or
“discrimination under” any program receiving federal assistance. 42 U.S.C. § 2000d. And it is
inconsistent with the case law the University cites for support, which directs courts to ask
whether any discrimination “changed [a plaintiff’s] status as a student or materially altered the
terms, conditions, or privileges he enjoyed as a student.” Hajjar-Nejad, 37 F. Supp. 3d at 129
(emphasis added). Stafford’s alleged removal from the team satisfies both of those
formulations.
What’s more, the suspension is easily distinguished from events the Hajjar-Nejad court
found insufficiently adverse—like verbal statements by medical school deans that did not
formally alter the plaintiff’s status as a student. Id. at 129 (“These statements, standing alone,
22
did not cause objectively tangible harm, and indeed caused no harm, other than perhaps
humiliation, anger, and embarrassment.” (internal quotation marks omitted)). Temporary or not,
Stafford’s removal from the team, beyond causing him “humiliation, anger, and embarrassment,”
also “materially altered the terms, conditions, or privileges he enjoyed as a student.” Id. And
finally, the fact that Stafford was given the right to play his way back onto the team does not
obviate the harm caused by the initial removal, as GWU suggests. MTD at 11–12. That would
be akin to holding that one could not bring a Title VII claim for a discriminatory termination so
long as the employer offered the employee a chance to re-apply for his old job; that is not the
law. In sum, then, the Court concludes that Stafford has alleged at least two adverse actions that
can serve as the predicate for his intentional discrimination claim.
Of course, Stafford still must plausibly allege that his suspension was motivated by
discriminatory animus. See Hajjar-Nejad, 37 F. Supp. 3d (explaining that materially adverse
actions must be taken “for reasons related to Plaintiff’s race” to establish discrimination claim).
Has his complaint done so? Stafford notes that Macpherson had just been named the head coach,
meaning all of his previous allegations regarding mistreatment—allegedly owing to Stafford’s
race—should not be imputed to Macpherson. Am. Compl. ¶ 91. When he discusses his
conversation with Macpherson, he alleges only that Macpherson informed him he would have to
try out, and he fails to allege that this decision was motivated by discriminatory animus. Id. ¶
94. The closest Stafford comes to alleging that this decision had some discriminatory motivation
is when he alleges, in his original complaint, that “[t]here were two other white male freshman
players that were on the team that had seemingly replaced Plaintiff.” Compl. ¶ 76. Stafford’s
proposed amended complaint deletes this allegation, but at any rate, it would not be enough—
especially given that other, non-discriminatory explanations for the decision abound, including
23
the fact that Stafford apparently did not play in any of the team’s matches during the prior spring
season, a decision made by the team’s interim head coach Torrie Browning. Am. Compl. ¶¶ 84–
89. Moreover, other of Stafford’s allegations, suggest that Macpherson was actually on
Stafford’s side throughout this ordeal. While his teammates allegedly waged a private campaign
to ensure he was not reinstated, Macpherson thought Stafford had the potential to “become a
dangerous player” and brought him back on board, despite acknowledging other players’
negative “opinion” of Stafford. Id. ¶ 101. Stafford has thus failed to plead facts that plausibly
suggest Macpherson removed him from the team, or required him to try out for the team, because
he was black.
For all these reasons, to the extent Stafford’s Title VI claim turns on an intentionally
discriminatory action taken by one of the Defendants themselves, the Court will dismiss the
claim.5
3. Hostile Environment under Title VI
As it turns out, the only viable discrimination claim Stafford may have is one he did not
explicitly plead: that GWU created a hostile educational environment, or at least allowed one to
persist. When it comes to complaining about specific instances of discriminatory treatment by
the Defendants, Stafford’s complaint suffers from one principal shortcoming: much of the
harassment he documents concerns racial abuse and antagonism by his teammates rather than the
University and its employees that Stafford names as defendants in the suit. But that
characteristic of his complaint is a feature, not a flaw, of a hostile environment claim.
5
It is also worth noting that, to the extent Stafford intended to sue Early in her individual
capacity for a Title VI violation, that claim fails because the “text of Title VI . . . precludes
liability against . . . individuals.” Mwabira-Simera, 692 F. Supp. 2d at 70 (quotation marks
omitted).
24
The Supreme Court has held, in the Title IX context, that an intentional discrimination
claim against a school can be premised on the actions of fellow students, so long as the plaintiff
can show that school officials were “deliberately indifferent to known acts” of harassment.
Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 641 (1999). Although Davis “dealt with sex-
based peer harassment under Title IX, ‘Congress modeled Title IX after Title VI . . . and passed
Title IX with the explicit understanding that it would be interpreted as Title VI was.’” Fennell v.
Marion Indep. Sch. Dist., 804 F.3d 398, 408 (5th Cir. 2015) (quoting Fitzgerald v. Barnstable
Sch. Comm., 555 U.S. 246, 258 (2009)) (internal citation omitted). Indeed, “[e]xcept for the
substitution of the word ‘sex’ in Title IX to replace the words ‘race, color, or national origin’ in
Title VI, the two statutes use identical language to describe the benefited class.” Cannon v.
Univ. of Chicago, 441 U.S. 677, 694–95 (1979). Thus, there is every reason to think that the
“analytical framework” employed by the Supreme Court in Davis should be applied to cases
alleging race-based peer harassment under Title VI, which is precisely what the Fifth Circuit (in
Fennell) and at least two other courts of appeals have done. Id.; see Blunt v. Lower Merion Sch.
Dist., 767 F.3d 247, 317 (3d Cir. 2014); Bryant v. Indep. Sch. Dist. No. I-38 of Garvin Cty., OK,
334 F.3d 928, 934 (10th Cir. 2003).6 Although the D.C. Circuit has not yet passed on this
question, the Court is persuaded by Fennell, Blunt, and Bryant and follows the path they have
charted. Thus, Stafford can plausibly plead an adequate intentional discrimination claim
6
While this Court uses the label “hostile environment” or “hostile educational
environment,” hostile environment claims in the educational context are often labeled “peer
harassment” claims, owing to the Supreme Court’s use of that label in Davis, 526 U.S. at 648.
This Court prefers “hostile environment,” because the fact of peer harassment is not the linchpin
of liability; the fact of school officials allowing such harassment to continue unchecked, thereby
creating a hostile environment for students, is.
25
notwithstanding the complaint’s persistent focus on individuals neither named as defendants in
the case nor employed by the University.
Much of Stafford’s complaint focuses on the behavior of his teammates and coaches who
are not named as defendants in this suit, and his real grievance appears to be that this conduct
went unchecked by the head coaches and athletics department personnel he does name as
defendants. For example, he alleges that, in his freshman fall season, he and the other persons of
color on the tennis team “were subjected to constant threats” by Munoz not directed at the other
players. Am. Compl. ¶ 28. He complains of persistent “bullying by the coaches of the tennis
players who were of color,” id. ¶ 29, and details specific incidents of racial insensitivity and
hostility, id. ¶¶ 29–34. Stafford complains of more of the same in his freshman spring season.
See, e.g., id. ¶ 62–69 (alleging that the racist abuse continued and detailing specific instances).
The beat goes on like this up until Stafford’s final suspension from the University in January
2018.
The University’s inaction only made matters worse, in Stafford’s telling. In paragraph
70, for example, Stafford alleges that “GWU, through the non-responsiveness of its Athletic
Department, specifically Defendants Nero and Defendant Early, fostered an environment that
was conducive to blatant discriminatory conduct.” Later, Stafford alleges that “Defendant
GWU, working in concert with and by through all other Defendants . . . subject[ed] Plaintiff to
withering and debilitating discriminatory harassment.” Id. ¶ 126; see id. ¶ 131 (using exact same
language in amending Title VI claim). This “subjected to” language is exactly what the Supreme
Court in Davis said was sufficient to spell out a hostile environment discrimination claim in the
Title IX context, and there is no reason to think that the principles in Davis should not apply with
equal force under Title VI. See 526 U.S. at 643 (finding no difference between a school
26
engaging in “discrimination” versus “subjecting students to discrimination” (internal quotation
marks omitted)). And while Stafford had already alleged in his original complaint that the
University took no action to curb the racial abuse he was allegedly enduring, he now alleges that
GWU in fact took affirmative actions “which caused the misconduct to exacerbate and become
more frequent and intense.” Am. Compl. ¶ 117.
Stafford’s theory is plain: even if the defendants themselves were not committing the
discriminatory acts, they should have intervened to put a stop to them—but instead stood idle or
took actions that only encouraged further abuse. See, e.g., id. ¶ 70 (inaction by Early), ¶ 84
(inaction by Macpherson). These are the hallmarks of a hostile environment claim,
notwithstanding Stafford’s failure to use those exact words. And the failure to explicitly plead a
hostile environment claim does not categorically bar this Court from construing Stafford’s
complaint to include one. As the D.C. Circuit has recognized, a complaint which alleges
“discrimination . . . in principle includes a hostile work environment theory.” Steele v. Schafer,
535 F.3d 689, 694 (D.C. Cir. 2008).
It is especially apparent that a discrimination claim encompasses a hostile environment
theory when a plaintiff alleges “constructive discharge,” i.e., that the environment was so bad
that, although not formally terminated from a position, the plaintiff had no choice but to leave.
Id. (noting that a constructive discharge claims is often premised on a hostile work environment).
Like Steele, except in the educational rather than employment context, the complaint in this case
sketches a constructive discharge claim. See Pennsylvania State Police v. Suders, 542 U.S. 129,
141 (2004) (discussing constructive discharge doctrine). Starting in his freshman year, Stafford
says the “substantial overt racism during the first couple of months . . . eviscerated [his] desire to
participate in team activities and caused him to try to limit his interactions with his teammates as
27
much as possible.” Am. Compl. ¶ 35. He says his first suspension from the team, in the winter
of 2015, resulted from his objection to a teammate’s use of the “n-word.” Id. ¶ 38. He says his
grades plummeted his freshman year because the “overt racism” caused him “anxiety, extreme
depression and severe mental anguish.” Id. ¶ 71. And while his final discharge from the team
was due to his persistently low grades, Stafford again says he struggled only because of the
“severe anguish and distress” caused by the years-long racial harassment. Id. ¶ 112. So while
Stafford admits his poor grades merited an academic suspension, he says they were the direct
result of Defendants having allowed a racially hostile environment to fester over several years.
This makes his theory analogous to constructive discharge, a quintessential hostile environment
claim.
A further reason to construe Stafford’s amended complaint as raising a hostile
environment claim is that GWU has already done so. The court in Steele found it significant that
the defendant’s summary judgment briefing addressed the hostile work environment issue
despite the complaint’s failure to allege that claim, suggesting the defendant was at least put on
notice of plaintiff’s probable intent to raise one. 535 F.3d at 694. Here, although GWU did not
address a potential hostile work environment claim in its motion to dismiss, it argues at length
against such a claim in its opposition to Stafford’s motion for leave to file an amended
complaint. See Opp. at 13-17. Thus, while the D.C. Circuit has expressed some concern about
construing a complaint to raise a claim that it has not explicitly raised when defendants have not
detected such a claim, that concern is not implicated here. See Reshard v. LaHood, 443 F. App’x
568, 570 (D.C. Cir. 2011) (judgment) (“Significantly, neither Reshard nor DOT addressed or
even acknowledged a hostile work environment claim . . . .”). Finally, because “this opinion
comes early in these proceedings, in a denial of a . . . motion to dismiss,” GWU will have “many
28
opportunities left to defend itself against such a claim.” Bing v. Architect of the Capitol, 300 F.
Supp. 3d 53, 59 (D.D.C. 2017) (construing complaint to include hostile work environment claim
even though it stated such a claim less clearly than plaintiffs did in Steele). Given these
similarities with Steele, and in an abundance of caution in light of Stafford’s pro se status, the
Court will construe Stafford’s complaint as raising a hostile environment claim.
That Stafford has pled such a claim, however, does not necessarily mean the claim can
survive GWU’s Rule 12(b)(6) motion. Stafford still must show that he has adequately stated a
right to relief under the high bar that has been set for student-on-student harassment claims under
Title VI. “When a Title [VI] discrimination claim is based on peer [racial] harassment, a funding
recipient is liable in damages only if it is deliberately indifferent to peer [racial] harassment of
which it has ‘actual knowledge’ and ‘that is 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.’” Wells v. Hense, 235 F. Supp. 3d 1, 7 (D.D.C. 2017) (quoting Davis, 526 U.S. at
650). “‘Deliberate indifference’ in this context exists ‘only where the recipient’s response to the
harassment or lack thereof is clearly unreasonable in light of the known circumstances,’” id.
(quoting Davis, 526 U.S. at 648), and where such indifference “cause[s] students to undergo
harassment or make them liable or vulnerable to it,” id. at 7–8 (quoting Davis, 526 U.S. at 645).
GWU contends that Stafford has failed to plead both that the University was deliberately
indifferent and that the harassment he suffered was sufficiently severe and pervasive. The Court
begins with the closer question: whether Stafford has alleged facts that show the University was
deliberately indifferent to the racial harassment he was enduring. GWU insists that Stafford
cannot show that the University’s response to the alleged harassment was “clearly unreasonable
in light of the known circumstances.” Reply in Support of Motion to Dismiss (“Reply”), ECF
29
No. 13, at 14 (quoting Davis, 526 U.S. at 648). Although Stafford alleges that he and his father
met with members of the coaching staff and athletics department to communicate their concerns,
GWU says the broad allegations “about racism or similarly vague and generalized descriptions”
that were relayed to school officials were not concrete enough to put the onus on the school to
remedy the problem. Id. at 14–15. GWU further notes that Stafford “does not allege that he ever
filed a formal complaint against any of his teammates or his coaches,” and argues that even if he
had, “requiring Defendants to take disciplinary action in this circumstances would infringe the
considerable deference that is owed to educational institutions’ decisions regarding discipline[.]”
Id. at 15.
By the Court’s count, Stafford details six instances in which he (and his father) informed
GWU officials about the alleged racial harassment he was enduring. The first came in the spring
semester of 2015 after Stafford was suspended from the team for, according to him, chastising a
teammate who had used a racial slur. See Am. Compl. ¶¶ 36–38. Stafford and his father met
with then coach Munoz and Early to discuss the suspension. Id. ¶ 42. Stafford does not specify
what he or his father related to Munoz and Early, but he does say that Munoz “falsely denied the
existence of any racial animus.” Id. Stafford also notes that Early did not order that he be
reinstated to the team and instead left that decision to the discretion of Munoz. Id. ¶ 43.
Meetings two and three happened in quick succession in March 2016. First, after an
assistant coach—who was bridging the gap between the tenures of Munoz and Macpherson—left
Stafford out of the lineup at a tournament, Stafford “reached out to Defendant Early to complain
about the tournament, the racist mistreatment he was subjected to and the lack of playing time.”
Id. ¶ 87. Early then scheduled a follow-up meeting with Stafford and the assistant coach, who
offered tennis- and team-related reasons for why Stafford did not play. Id. ¶ 88. Although
30
Stafford says he “raised the issues of discriminatory treatment during the meeting,” he says those
concerns were “ignored.” Id. Instead, Early purportedly told Stafford to “just let the season pass
and wait for the next coach to arrive.” Id. Stafford further alleges that, around this time, his
father “tried to contact Defendant Early at various times, but she mostly refused to communicate
with him.” Id. ¶ 89.
The fourth meeting occurred shortly after Stafford realized he was being treated as if he
had been removed from the team at the beginning of the 2016 season. Stafford and his father
met with a vice provost and an athletics department official. Id. ¶ 96. After they “talked about
all of the overt racism, the violation of various policies and procedures, the defamation of
character and the emotional distress and severe mental anguish” Stafford was suffering, Stafford
says the school officials “were mortified” and “confused with why nothing was being done and
why [Stafford] was such an enormous target.” Id. But Stafford was not immediately reinstated
to the team following this meeting; he had to try out in front of the new coach, Macpherson. Id.
¶ 97. And the racist harassment, according to Stafford, only intensified after his reinstatement.
See id. ¶¶ 100–06.
The fifth interaction, in spring 2016, was between only Stafford and Macpherson, right
after Stafford had lost a practice match and yelled at a teammate. Id. ¶ 106. Stafford allegedly
told Macpherson “about all of the conspiracies, racial discrimination and defamation of [his]
character,” and Macpherson responded that he would “try to be more aware of these things” and
would “handle everything.” Id. Macpherson suspended Stafford for one practice but did not
discipline other players, according to Stafford. Id.
The sixth and final meeting between Stafford and a member of the University occurred
when Stafford met with an academic advisor to appeal his academic suspension in January 2018.
31
At that meeting, Stafford “informed the advisor that the above-described circumstances”—
referencing the longstanding racial harassment—“undermined his ability to perform
academically, but the advisor was insistent that the appeal should only contain contrite
acceptance of personal responsibility for the poor grades and not any effort to appeal on the basis
of the trauma caused by the racially hostile atmosphere condoned by Defendant GWU.” Id. ¶
114. The University denied Stafford’s appeal, and his contact with the school ceased. Id. ¶ 115.
Did these interactions put GWU on notice that Stafford felt he was enduring serious
racial harassment, and was the University’s response to the allegations clearly unreasonable?
Given the legal standard guiding the inquiry, the answer is yes. If the Court, as it must, takes
Stafford’s factual allegations as true and draws all reasonable inferences in his favor, that means
his allegations of overt racial harassment by several teammates are true, see, e.g., id. ¶¶ 62–69
(detailing teammates’ harassment); that he in fact reported these incidents to his coaches and to
GWU athletic administrators, see supra 26–28 (recounting these reports); and that neither his
coaches nor the athletics department took any steps to investigate or curtail the abuse that was
occurring, Am. Compl. ¶ 117 (alleging that University “took no action to discipline” the other
players). This is enough to plausibly allege that the University was deliberately indifferent to
Stafford’s plight. For “where a university has knowledge that its remedial action is inadequate
and ineffective, it is required to take reasonable action in light of those circumstances to
eliminate the behavior”; and where it does not take that reasonable action, “such university has
failed to act reasonably in light of the known circumstances.” Cavalier v. Catholic Univ. of Am.,
306 F. Supp. 3d 9, 34 (D.D.C. 2018) (internal quotation marks and alteration omitted).
That leaves GWU’s argument that the harassment allegations are not sufficiently severe
and pervasive to support a hostile environment claim. Here, Stafford must allege facts showing
32
harassment “so severe, pervasive, and objectively offensive that it effectively bar[red] [his]
access to an educational opportunity or benefit.” Davis, 526 U.S. at 633. In making this
assessment, the Court notes “that the required showing of severity or seriousness of the harassing
conduct varies inversely with the pervasiveness or frequency of the conduct.” Ellison v. Brady,
924 F.2d 872, 878 (9th Cir. 1991) (considering hostile work environment claim under Title VII).
Thus, “[a]n egregious, yet isolated, incident” might effectively bar Stafford from an educational
opportunity or benefit, but so too might pervasive, though less severe, incidents of harassment.
Lauderdale v. Texas Dep’t of Criminal Justice, Institutional Div., 512 F.3d 157, 163 (5th Cir.
2007) (considering hostile work environment claim under Title VII).
GWU begins by attacking Stafford’s allegations as too isolated and sporadic to support a
hostile environment claim. It argues that the Court can consider only those racial incidents
occurring within the applicable limitations periods—i.e., between spring 2016 and December
2017. Reply at 15–16. And because there were “long gaps between” those incidents, GWU says
they were not pervasive enough to satisfy the standard set forth in Davis. Id. at 16.
This argument misses the mark. The Supreme Court, while discussing a traditional
hostile work environment claim under Title VII, has explained that courts can consider events
falling outside the limitations period “so long as all acts which constitute the claim are part of the
same unlawful practice and at least one act falls within the time period.” Nat’l R.R. Passenger
Corp. v. Morgan, 536 U.S. 101, 122 (2002). At least one court in this district has reasoned
persuasively that this so-called “continuing violation” rule should apply to a hostile educational
environment claim under Title IX. See Cavalier, 306 F. Supp. 3d at 43. And as this Court
explained earlier, there is no meaningful difference—besides the nature of the protected
characteristic—between hostile environment claims under Title IX and Title VI. See supra 22.
33
Thus, if the continuing violation doctrine applies under Title IX as it does under Title VII, then it
ought to apply just the same under Title VI. A brief refresher on Morgan’s reasoning confirms
that there is nothing exceptional about hostile environment claims under Title VII that renders
the continuing violation doctrine an ill fit for other contexts. Morgan’s holding was premised on
the fact that hostile environment claims “are different in kind from discrete acts,” since, by
“[t]heir very nature,” they “involve[ ] repeated conduct.” 536 U.S. at 115. Because such
conduct does not ordinarily “occur on any particular day” but rather “over a series of day or
perhaps years,” id., courts must be permitted to consider acts outside the limitations period to
properly assess such claims, so long as at least one act in the series falls within the limitations
period, id. at 118–19. Here, as in Morgan and Cavalier, Stafford complains of repeated
harassment over a period of years; thus, as in those cases, the Court will consider every act of
racial harassment that Stafford alleges, dating all the way back to his freshman year in 2014.
Stafford has identified roughly a dozen specific racially charged incidents—including his
teammates posting racist social media messages, Am. Compl. ¶ 33, calling Stafford a “monkey,”
id. ¶ 64, and making racialized insinuations about the size of his genitals, id. ¶ 83. And Stafford
at various points indicate those events are merely illustrative, not exhaustive. See, e.g., id. ¶ 62
(alleging a teammate would “often spew hateful racist rhetoric towards his opponents”); id. ¶ 83
(alleging teammates “repeatedly harassed” Stafford and providing “example[s]”).
GWU counters that some of these incidents did not involve Stafford, or at least were not
directed at him. As a result, it says the Court should not consider them in assessing the
pervasiveness of the harassment. But the D.C. Circuit has roundly rejected this line of argument
in the Title VII hostile-work-environment context, for reasons that would seem to apply with
equal force here. In reversing a district court judge’s decision to exclude evidence of harassment
34
of a Title VII plaintiff’s co-workers, the D.C. Circuit explained: “Even a woman who was never
herself the object of harassment might have a Title VII claim if she were forced to work in an
atmosphere in which such harassment was pervasive.” Vinson v. Taylor, 753 F.2d 141, 146
(D.C. Cir. 1985), aff’d and remanded sub nom. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57
(1986). Accordingly, when Stafford alleges that he witnessed a teammate “spew[ing] hateful
racist rhetoric towards his opponents,” Am. Compl. ¶ 62, or heard another teammate yelling the
n-word whenever it came on in a rap song in the team van, id. ¶ 104, the Court must consider
them as “directly relevant to the question whether [they] created an environment violative of
Title [VI].” Vinson, 753 F.2d at 146. With these principles in mind, then, the alleged racial
harassment appears far more pervasive than GWU lets on. See Reply at 16 (characterizing
allegations as “isolated incidents” with “long gaps between alleged incidents”).
Shifting from the number of incidents to their severity, GWU insists Stafford has
described only “distasteful, offensive, juvenile behavior and jokes,” rather than the sort of
overwhelming and debilitating harassment that previous cases have deemed sufficient. Reply at
16. The Court does not share GWU’s relatively tame view of the allegations. While some of the
incidents appear more benign than bigoted, the reverse is true of many of Stafford’s allegations.
The white players’ alleged use of the n-word—whether directed at Stafford or simply in his
presence—could understandably anger Stafford and cause him to feel isolated from the team.
See, e.g., Am. Compl. ¶¶ 65, 104, 108 (alleging use of n-word by three different teammates).
The frequent use of racial slurs in the team’s group text chat—from which Stafford was
excluded, but whose messages were relayed to him—would tend to further exacerbate Stafford’s
sense of alienation. See id. ¶ 34 (alleging a teammate described a black person as a “gorilla” and
referred to a piece of poetry as “black shitty poetry”). So, too, would the repeated expressions of
35
surprise that Stafford could somehow be both black and wealthy. See id. ¶¶ 83, 104 (alleging
that teammates made the comment “as if the two were mutually incompatible”). And as the
Court’s recitation of the facts alleged in Stafford’s complaint makes clear, see supra 2–10,
Stafford cites plenty more incidents like these. Given that the Court must draw all inferences
from the facts alleged by Stafford in his favor, it has little trouble inferring that incidents like
these could have had a profound impact on Stafford, notwithstanding GWU’s description of
them as merely “distasteful” or “offensive.” The Court is mindful of Davis’s caution that
“simple acts of teasing and name-calling among [students],” even where such comments target a
protected characteristic, are ordinarily insufficient to satisfy the severe, pervasive, and
objectively offensive standard. 526 U.S. at 652. But the Court concludes, as did the Fifth
Circuit in Fennell, “that repeatedly being referred to by one’s peers by the most noxious racial
epithet in the contemporary American lexicon, [and] being shamed and humiliated on the basis
of one’s race is harassment far beyond normal schoolyard teasing and bullying.” 804 F.3d at 409
(internal quotation marks and alteration omitted).
The University further maintains that Stafford must (but did not) allege that the
harassment caused him to feel “threatened on account of his race.” Reply at 17. This argument
rests on the dubious premise that Stafford must allege he felt physically unsafe to adequately
plead a hostile environment claim. But the Court is aware of nothing in Title VI or the case law
that commands such a showing. True, Davis did say that the “most obvious example of student-
on-student sexual harassment” involves “students physically threaten[ing]” other students. 526
U.S. at 650. Yet Davis never said that physical threats are the only type of peer harassment that
can substantiate a hostile educational environment claim. That is for good reason. The central
question is whether Stafford has plausibly alleged that the harassment he endured “effectively
36
bar[red] [his] access to an educational opportunity or benefit.” Id. at 633. Exactly how the
harassment had that effect—whether by fear for his physical safety, humiliation, a sense of
alienation, or some amalgam of these—is beside the point.
Be that as it may, GWU still insists that Stafford “has not plausibly alleged that the
incidents he describes barred him from an educational opportunity or benefit.” Reply at 17. The
Court disagrees. Stafford at multiple points in the complaint alleges that his academic (and
tennis) performance suffered as a direct result of the pervasive harassment carried out by his
teammates. See, e.g., Am. Compl. ¶ 71 (alleging that the racist abuse caused him to “suffer[ ]
from anxiety, extreme depression and severe mental anguish” which “adversely affected his
academic performance,” culminating in a sub-2.0 grade point average). So while GWU contends
that Stafford cannot attribute his suspension from the University to anything but his own
academic failures, Stafford has in fact alleged that his academic struggles were the product of the
prolonged and intensive racism he experienced. This type of allegation parallels one Judge Moss
found sufficient at the pleadings stage in Cavalier, in which a Title IX plaintiff alleged that a
university’s failure to “take her rape seriously and [to] give her a hearing interfered with her
coursework and her role on the . . . lacrosse team.” 306 F. Supp. 3d at 32 (internal quotation
marks omitted) (alteration in original).
An astute reader may ask how the Court can, on the one hand, dismiss the academic
suspension as irrelevant to a discrete discrimination claim and, on the other hand, find that it is a
crucial event for Stafford’s hostile educational environment claim. To adequately plead a
discrete discrimination claim under either the DCHRA or Title VI, a plaintiff must plausibly
allege that a particular adverse action was motivated by racial animus. See Hejjar-Nejad, 37 F.
Supp. 3d at 129–142 (examining whether each of several discrete adverse actions were motivated
37
by discriminatory animus); Delbert, 2013 WL 6222987, at *1 (affirming dismissal of Title VI
claim “because appellant’s complaint lacked any factual allegations linking the
claimed adverse actions to his race”). Stafford could not plausibly allege that with respect to his
academic suspension, because he admitted he was suspended for his bad grades; nowhere does
he allege that the University’s academic administrators made that decision because Stafford was
black. But the pleading burden on Stafford is different for his hostile educational environment
claim: he need not allege that he was suspended for being black; he need only allege that he
suffered such intense racial hostility that he was effectively denied the opportunity to succeed
academically—and the academic suspension goes directly to that.
Although an allegation that peer harassment caused a student to struggle academically
might suffice in some cases, GWU urges the Court to discount Stafford’s allegation here, arguing
that it simply is not plausible that the harassment Stafford alleges caused his poor academic
performance. It points to Stafford’s GWU and high school transcripts, which “demonstrate that
[Stafford] has long struggled with academics, including early in his time at the University.”
Reply at 17. This argument is unavailing at the motion to dismiss stage of the case. Stafford has
alleged that the racial harassment began early in his freshman year at GWU, and given that the
Court must accept his factual allegations as true and draw all reasonable inferences from those
facts, it is plausible that such harassment, if it actually occurred, could have seriously affected his
academic performance. That Stafford was not a model student in high school does not
necessarily mean he could not have succeeded in college. In sum, then, the Court concludes that
Stafford has alleged enough to plead a viable hostile environment claim under Title VI.
This conclusion, however, should not be taken as any endorsement of the strength of
Stafford’s claims. When this case reaches the summary judgment stage, it will remain Stafford’s
38
burden to produce evidence corroborating his alleged harassment, establishing a connection
between GWU’s actions and his academic struggles, and showing that the school knew of
whatever harassment he may have been enduring and yet remained deliberately indifferent to it.
The decision to let one of Stafford’s claims proceed today is not any indication of what the
evidence will show tomorrow.
B. Contract Claims: Counts III and IV
Stafford alleges in Count III that GWU violated 42 U.S.C. § 1981, which prohibits racial
discrimination in the making and performance of contracts, Am. Compl. ¶¶ 132–135, and in
Count IV that GWU breached its contract with him under D.C. law, id. ¶¶ 136–142. These
claims fail for the same reason, so the Court will address them together.
Under 42 U.S.C. § 1981, “[a]ll persons within the jurisdiction of the United States shall
have the same right . . . to make and enforce contracts,” which “includes the making,
performance, modification, and termination of contracts, and the enjoyment of all benefits,
privileges, terms, and conditions of the contractual relationship.” “To establish a claim under
§ 1981, a plaintiff must show that (1) [he is a member] of a racial minority [group]; (2) the
defendant had an intent to discriminate on the basis of race; and (3) the discrimination concerned
one or more of the activities enumerated in the statute.” Mitchell v. DCX, Inc., 274 F. Supp. 2d
33, 44–45 (D.D.C. 2003) (citation omitted and first alteration added). A breach of contract claim
under D.C. law has four elements: “(1) a valid contract between the parties; (2) an obligation or
duty arising out of the contract; (3) a breach of that duty; and (4) damages caused by breach.”
Ihebereme v. Capital One, N.A., 730 F. Supp. 2d 40, 47 (D.D.C. 2010) (citation and quotation
marks omitted).
39
Before either of Stafford’s contract-based claims can get off the ground, he has to
identify an underlying contract. While Stafford does not identify a written contract between him
and GWU, the “general rule [is] ‘that the relationship between a university and its students is
contractual in nature.’” Manago v. District of Columbia, 934 A.2d 925, 927 (D.C. 2007)
(quoting Basch v. George Washington University, 370 A.2d 1364, 1366 (D.C. 1977)). “The
University offers an education on certain terms—tuition, attendance, behavior under the Code,
etc.—and a student accepts and performs his part of the contract accordingly.” Doe v. George
Washington Univ., 321 F. Supp. 3d 118, 123 (D.D.C. 2018). Even so, a “plaintiff must
nevertheless ‘allege sufficient facts to demonstrate . . . the terms of the contract’” that was
allegedly breached. Mosby-Nickens v. Howard Univ., 864 F. Supp. 2d 93, 98 (D.D.C. 2012)
(quoting Manago, 934 A.2d at 927). Stafford does not do that.
While there is little doubt that Stafford entered into a contract of sorts when he paid
tuition to GWU in return for the chance to earn a degree there, Stafford’s complaint focuses
entirely on his experiences with the tennis team.7 But as GWU points out, Stafford “has not
alleged that the University promised him anything regarding his participation on the tennis
team,” that he “received a scholarship” for playing on the team, that “his acceptance to the
University was conditioned on him playing tennis,” or “that he was guaranteed a spot on the
7
To be sure, Stafford also complains about his academic suspension from the University
in January 2018, but as the Court has already explained, that cannot serve as the basis for either
contract claim because Stafford has admitted that the suspension was due to his poor grades, not
some other illicit reason. While his poor academic performance might have been caused by
GWU, as Stafford alleges, that does not mean the academic suspension itself was the breach of
some contract term (which, in any event, Stafford does not identify). Indeed, his academic
suspension is completely consistent with the Agreement of Expectation Stafford signed in
September 2017, which states that a student’s failure to meet the University’s “academic
requirements may result in suspension from the University.” MTD, Ex. G.
40
team while he was enrolled at the University.” MTD at 14. And although Stafford alleges in his
amended complaint that Munoz “made multiple representations to [Stafford] about GWU as a
school in general, its Athletic Department, and its tennis team in particular, upon which [he]
justifiably relied in making the decision to join the team and attend Defendant GWU,” Am.
Compl. ¶ 19, he fails to allege what any of those “multiple representations” were, or how GWU
violated them. See, e.g., id. ¶ 21 (alluding to “promises made by Defendant GWU through
Defendant Munoz” but not explaining what those promises were); id. ¶ 27 (alleging that racism
he experienced was a “breach [of] the binding promises made to Plaintiff during recruitment” but
not describing those promises). The exhibit Stafford attaches to his amended complaint—a short
email from Munoz to Stafford asking whether he had received his acceptance letter from the
University and informing Stafford of the team’s recent success—does not provide any further
detail on the “representations” and “promises” Munoz made to Stafford. See ECF No. 11-3.
Nor does Stafford’s dismissal from the tennis team appear to violate any provision in
GWU’s Student Athlete Handbook (assuming that could create a contract) which, as explained
above, makes clear that participation in a sport is a “privilege rather than a right.” MTD, Ex. B.
Perhaps the University violated some provision of the Code of Student Conduct, but Stafford has
not suggested which provision that may be, instead stating in general terms that a contract “was
created when Plaintiff accepted the offer to attend Defendant GWU as a member of its tennis
team,” Am. Compl. ¶ 137, and that “there was an agreement of all material terms,” id. ¶ 139.
That is plainly insufficient, even under the permissive gaze courts cast upon pro se complaints.
See Mosby-Nickens, 864 F. Supp. 2d at 98 (stating that plaintiffs must allege facts establishing
the terms of the contract); Manago, 934 A.2d at 927 (affirming dismissal of contract claim
because plaintiff “fail[ed] to allege sufficient facts to demonstrate either the terms of the contract
41
or reason to think it was breached”); see also Ford v. Suntrust Mortg., 282 F. Supp. 3d 227, 233
(D.D.C. 2017) (dismissing contract claim because plaintiff failed to provide “fundamental facts,”
including the “specific contract terms” allegedly breached).8
Accordingly, the Court will dismiss Stafford’s contract claims in Counts III and IV.
C. Negligence Claims: Counts V and VI
In Count V, Stafford alleges that GWU negligently caused him emotional distress. Am.
Compl. ¶¶ 143–151. In Count VI, he alleges that GWU negligently supervised and retained
coach Munoz and negligently supervised coach Macpherson and then-athletics director Nero. Id.
¶¶ 152–156.
1. Negligent Infliction of Emotional Distress
D.C. law permits recovery for emotional distress damages under either the “zone of
danger” or “special relationship” test. See Hedgepeth v. Whitman Walker Clinic, 22 A.3d 789,
796–799 (D.C. 2011). The “zone of danger” theory allows “recovery for mental distress if the
defendant’s actions caused the plaintiff to be in danger of physical injury and if, as a result, the
plaintiff feared for his own safety.” Id. at 796 (citation and internal quotation marks omitted).
The “special relationship” test is met where a
plaintiff can show that (1) the defendant has a relationship with the plaintiff, or
has undertaken an obligation to the plaintiff, of a nature that necessarily
8
Stafford’s reference to the “implied covenant of good faith and fair dealing” with
respect to his D.C. contract claim, Compl. ¶ 111, does not cure the failure to identify specific
contract terms. As GWU contends, the covenant is only enforceable in relation to the contract’s
material terms; it does not exist in a vacuum. See Allworth v. Howard Univ., 890 A.2d 194, 201
(D.C. 2006) (explaining that covenant requires that “neither party shall do anything which will
have the effect of destroying or injuring the right of the other party to receive the fruits of the
contract” (citation and quotation marks omitted)). Because Stafford fails to identify what
“fruits” he was entitled to receive under the contract, the covenant of good faith and fair dealing
has no application.
42
implicates the plaintiff's emotional well-being, (2) there is an especially likely risk
that the defendant's negligence would cause serious emotional distress to the
plaintiff, and (3) negligent actions or omissions of the defendant in breach of that
obligation have, in fact, caused serious emotional distress to the plaintiff.
Id. at 810–11.
Ordinarily, an NIED claim is subject to a three-year statute of limitations. D.C. Code
§ 12-301(8); Rendall-Speranza v. Nassim, 107 F.3d 913, 920 (D.C. Cir. 1997). “However, a
claim for emotional distress that is intertwined with any of the causes of action for which a
period of limitation is specifically provided . . . is subject to the limitation period for the
intertwined claim.” Rendall-Speranza, 107 F.3d at 920 (internal quotation marks omitted).
“Here, plaintiff’s emotional distress claim is based on the exact same conduct that forms the
basis of [his] DCHRA claims; therefore, the claims are intertwined, and the emotional distress
claim assumes the DCHRA claims’ one-year statute of limitations period.” Munoz v. Bd. of
Trustees of Univ. of D.C., 590 F. Supp. 2d 21, 26–27 (D.D.C. 2008); see, e.g., Compl. ¶ 124
(“As a direct and proximate result of the discriminatory and unsafe educational environment
created by Defendant’s negligent response to the discriminatory conduct . . . .”). As with
Stafford’s DCHRA discrimination claim, that means the complained-of negligent conduct must
have occurred on or after November 26, 2017, which corresponds to paragraph 108 and later in
the amended complaint.
Stafford alleges that GWU is liable under either the “zone of danger” or “special
relationship” theory. As for the former, he says that “GWU’s negligent conduct placed [him] in
the zone of immediate physical danger, causing him to fear for his own safety,” and that the
racist treatment he endured caused him to “live with the constant threat of physical and
emotional violence.” Am. Compl. ¶ 149. As for the latter, he says “GWU had a special
relationship with, or had undertaken a special obligation to [him] of a nature that necessarily
43
implicated [his] emotional wellbeing,” namely the “relationship between a student and his
educational institution.” Id. ¶ 150. The Court addresses each theory in turn.
To plead a viable zone-of-danger NIED claim, Stafford “must show ‘that [he] actually
feared for [his] safety as a result of [the defendant’s] conduct.” Hollis v. Rosa Mexicano DC,
LLC, 582 F. Supp. 2d 22, 27 (D.D.C. 2008) (quoting Jane W. v. Pres. & Dirs. of Georgetown
Coll., 863 A.2d 821, 826 (D.C. 2004)) (first two alterations added). Here, however, Stafford has
“has not alleged that [ ]he was ever in any zone of physical danger caused by an act of [a]
defendant where [ ]he had reason to fear h[is] safety.” Hollis, 582 F. Supp. 2d at 27. The Court
can find no event in the complaint that suggests a named defendant or other representative of
GWU created a dangerous situation that caused Stafford to fear for his safety. Stafford does say
that an assistant coach was such a “careless” driver that he “became very frightened” any time he
rode in the team van with him, Am. Compl. ¶ 32, but those rides appear confined to 2014, and
thus fall outside either the three- or one-year statute of limitations that applies to his NIED claim.
Even if some of these rides occurred within the limitations period, they still would not suffice;
although Stafford relates a story of a near-crash told by a teammate, he does not cite any close
encounter that he personally experienced that caused him persistent emotional distress. Nor do
the alleged assaults suffered by Stafford’s Indian teammate suffice, because Stafford does not
allege that he was present for those assaults or that such assaults were threatened against him.
Id. ¶ 110.
Stafford’s special-relationship theory fares no better. Stafford “cannot identify any
relevant authority establishing that a student’s relationship with a university is the type of special
relationship that necessarily implicates her emotional well-being.” Cavalier, 306 F. Supp. 3d at
39. Nor can the Court locate such an authority. In Hedgepeth, the D.C. Court of Appeals
44
identified some archetypal special relationships—including psychiatrist-patient, doctor-patient,
funeral home-deceased family, and those appointed as guardians for children or the elderly—but
those are all markedly more personal and intimate relationships than that between a university
and one of its thousands of students. See 22 A.3d at 813–15. Moreover, the Court finds
particularly instructive the D.C. Court of Appeals’ decision in Sibley v. St. Albans School, 134
A.3d 789, 798 (D.C. 2016), which held that “[t]he relationship between a student and his school
. . . is not enough, without more, to impose the predicate duty of care for a claim of negligent
infliction of emotional distress.” If Sibley imposed no such duty on a 4–12 grade school—where
adolescent students are left in the care of the school for up to a dozen hours each day—it would
appear flatly inconsistent with D.C. law for this Court to impose that duty on a university—
where adult students are in class for only a dozen hours each week.
It is true that courts in this district have sometimes found that a university has a duty to
protect a student’s emotional well-being, but that is only where a court found the “more” that
was lacking in Sibley. For example, in Cavalier, a rape victim’s NIED claim survived a motion
to dismiss because the university “affirmatively represent[ed] to [her] that a no-contact order was
in place” and that “it would take the necessary steps to enforce it[.]” 306 F. Supp. 3d at 40
(D.D.C. 2018) (expressly declining to decide whether “university-student relationship, on its
own” would suffice to create an NIED duty). A similar representation to protect Stafford’s
emotional well-being is absent here. While Stafford alleges that he at various times told GWU
employees about the abuse he was suffering, those employees either disclaimed any intent to
remedy the alleged abuse, Am. Compl. ¶ 42 (Munoz denying Stafford’s racism claim); id. ¶ 88
(Early “ignor[ing]” Stafford’s report of discriminatory treatment), or made only vague
assurances that they would intervene, id. ¶ 106 (Macpherson allegedly telling Stafford “he would
45
be more aware of these things” and “would ultimately handle everything”).9 These are far from
the unequivocal assurance the university gave a victim of rape that it would enforce the no-
contact order against her attacker.
Other of Stafford’s proposed amendments do not cure these infirmities. Rather than
pleading facts that would support recovery under either the zone-of-danger or special-
relationship theory, Stafford instead attempts to buttress his allegations of emotional distress—
but that only serves to highlight that his NIED claim would fail for a separate reason. For
example, Stafford claims that he has suffered “significant mental anguish, emotional distress,
depression and other physical and mental ailments.” Id. ¶ 119. But even assuming the existence
of a duty from which an NIED claim could rise, such a claim would nevertheless fail for
inadequate injury allegations. As this Court has held previously, allegations of “mental distress”
are not enough, Bonner v. S-Fer Int’l, Inc., 207 F. Supp. 3d 19, 26 (D.D.C. 2016), and the Court
need not credit Stafford’s vague and conclusory allusions to “other physical and mental
ailments,” Grandison v. Wackenhut Servs., Inc., 514 F. Supp. 2d 12, 18 (D.D.C. 2007) (rejecting
plaintiff’s reliance on “mere labels and conclusions” under more permissive, pre-Twombly
pleading standards (internal quotation marks omitted)).
For all these reasons, Stafford’s NIED claim fails, and the Court will dismiss Count V.
2. Negligent Retention and Supervision
Stafford’s final claim, in Count VI, is against the university for negligent retention and
supervision of Munoz (who seems the primary target), Macpherson, and Nero. “D.C. case law
9
The Macpherson allegation concerns the time Stafford got into a dispute with a
teammate at practice. But Macpherson did, it seems, “handle” the situation, just not in the way
Stafford wanted: he suspended Stafford for a day and allegedly did not dole out punishment to
any other member of the team. Am. Compl. ¶ 106.
46
does not appear to distinguish between negligent supervision and negligent retention.” Thorp v.
District of Columbia, 319 F. Supp. 3d 1, 21 (D.D.C. 2016) (quoting Islar v. Whole Foods Mkt.
Grp., Inc., 217 F. Supp. 3d 261, 265 n.1 (D.D.C. 2016)); see Roe v. Wilson, 365 F. Supp. 3d 71,
86 n.9 (D.D.C. 2019). “To invoke [either] theory of liability it is incumbent upon a party to
show that an employer knew or should have known its employee behaved in a dangerous or
otherwise incompetent manner, and that the employer, armed with that actual or constructive
knowledge, failed to adequately supervise the employee.” Giles v. Shell Oil Corp., 487 A.2d
610, 613 (D.C. 1985).
GWU offers a host of reasons why these claims should fail, see MTD at 27–30, but the
most obvious one is that Stafford cannot establish the necessary tortious conduct by any of
Munoz, Macpherson, or Nero. “[A] common law claim of negligent supervision may be
predicated only on common law causes of action or duties otherwise imposed by the common
law. . . . To hold otherwise would be to impose liability on employers for failing to prevent a
harm that is not a cognizable injury under the common law.” Tridico v. District of Columbia,
130 F. Supp. 3d 17, 31 (D.D.C. 2015) (internal quotation marks omitted); see also Griffin v.
Acacia Life Ins. Co., 925 A.2d 564, 576 (D.C. 2007) (“[W]e conclude that a common law claim
of negligent supervision may be predicated only on common law causes of action or duties
otherwise imposed by the common law.”). As the foregoing analysis demonstrates, however,
Stafford has failed to adequately plead any of his common-law actions against any of the
individual defendants. Because he is unable to show independent tortious conduct by Munoz,
Macpherson, or Nero, he cannot maintain a claim against the University for negligently retaining
or supervising those individuals. See Islar, 217 F. Supp. 3d at 268 (dismissing negligent
47
supervision and retention claims where plaintiff could not identify a “predicate claim
under Griffin that would permit him to recover on a negligent supervision or retention theory”).
D. Demand for Punitive Damages
Because the Court has dismissed each Count in the complaint except for a hostile
environment claim under Title VI, the Court need only consider whether punitive damages are
recoverable as an incident to such a claim. They are not. Barnes v. Gorman, 536 U.S. 181, 189
(2002) (“[P]unitive damages may not be awarded in private suits brought under Title VI[.]”).
Accordingly, the Court will dismiss Stafford’s demand for punitive damages.
IV. Conclusion
For the foregoing reasons, the Court will deny Stafford leave to file an amended
complaint with respect to Counts I, III, IV, V, and VI, as amendment would be futile, and it will
dismiss those same counts. The Court will, however, grant Stafford leave to file an amended
complaint with respect to Count II and permit that Count, to the extent it contains a hostile
environment claim, to proceed. A separate Order shall accompany this Memorandum Opinion.
CHRISTOPHER R. COOPER
United States District Judge
Date: June 5, 2019
48