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Leader v. President and Fellows of Harvard College

United States District Court, D. Massachusetts

June 29, 2018

ALYSSA LEADER, Plaintiff,
v.
PRESIDENT AND FELLOWS OF HARVARD COLLEGE, Defendant.

          MEMORANDUM AND ORDER

          DENISE J. CASPER, UNITED STATES DISTRICT JUDGE.

         I. Introduction

         Plaintiff Alyssa Leader (“Leader”) brings claims against the President and Fellows of Harvard College (“Harvard”) under Title VII, arising out of Harvard's response to conduct by another student, who will be identified as John Doe (“Doe”), towards Leader. Harvard moves for summary judgment on all of Leader's claims. D. 105. Harvard also moves to strike Leader's response to Harvard's motion. D. 132. For the following reasons, the Court DENIES Harvard's motion to strike Leader's response, D. 132, and ALLOWS Harvard's motion for summary judgment, D. 105.

         II. Factual Allegations

         The following facts are undisputed unless otherwise noted.[1] Leader enrolled in Harvard College as an undergraduate student in 2011. D. 111 ¶ 1, D. 126 ¶ 1. From 2012 to 2015, Leader resided in Cabot House, an undergraduate residence. Id. Doe was also an undergraduate student at Harvard College who resided in Cabot House from 2012 to 2015. D. 111 ¶ 2; D. 126 ¶ 2. In 2014, both Leader and Doe worked at the Cabot Café on campus. D. 111 ¶¶ 2, 16; D. 126 ¶¶ 2, 16.

         Leader reported that, between April 2013 and March 2014, Doe sexually violated Leader a series of times. D. 111 ¶ 9; D. 126 ¶ 9. Leader's last conversation with Doe took place in September 2014. D. 111 ¶ 10; D. 126 ¶ 10. Prior to November 2014, Leader shared her allegations regarding Doe with certified rape counselors at Harvard's Office of Sexual Assault Prevention and Response (“OSAPR”), with the understanding that those conversations would be confidential. D. 111 ¶¶ 8, 11; D. 126 ¶¶ 8, 11.

         On November 5, 2014, Leader received an email from her advising administrator informing her that she was behind on meeting her deadline for her thesis prospectus and would receive an unsatisfactory grade in the course. D. 111 ¶ 12; D. 126 ¶ 12. On November 6, 2014, Leader informed Tiffanie Ting (“Ting”), her Resident Dean, of some of the details of Doe's conduct and the effect such conduct had on Leader's thesis work, without identifying Doe by name. D. 111 ¶ 14; D. 126 ¶ 14. Leader had not previously reported her allegations regarding Doe to any other non-confidential source at Harvard College. D. 111 ¶ 15; D. 126 ¶ 15. Ting asked Leader whether she wanted to be moved to another residence, and Leader indicated that she did not want to do so. D. 111 ¶ 16; D. 126 ¶ 16. On that same day, Ting contacted Harvard College's Title IX Coordinator, Emily Miller (“Miller”), regarding Leader and Miller then emailed Leader to set up a meeting. D. 111 ¶¶ 19, 21; D. 126 ¶¶ 19, 21. The next day, on November 7, 2014, Leader and Miller had a meeting at which they discussed the possibility of having Harvard College's Administrative Board enter a “no-contact” order between Leader and Doe, the possibility of academic accommodations, the option of Leader moving to a different residence, and the option of Leader filing a complaint with Harvard's Office of Sexual and Gender-Based Dispute Resolution (“ODR”). D. 111 ¶¶ 23-27, 32; D. 126 ¶¶ 23-27, 32. During that conversation, Miller informed Leader that a no-contact order would not contain a provision requiring Doe to maintain a certain distance from Leader; that the no-contact order would be mutual and therefore could prohibit Leader from attending events that Doe was already attending; and that Doe would not be restricted from coming to the Cabot Café at which they both worked. D. 126 ¶ 34; D. 135 ¶ 34. On November 11, 2014, Miller sent a follow-up email to Leader providing further options regarding the tailoring of a no-contact order, such as setting up staggered times that Leader and Doe would be permitted to enter public spaces. D. 111 ¶¶ 30-31; D. 126 ¶¶ 30-31. On November 14, 2014, Leader responded to Miller's email indicating that she preferred not to pursue a no-contact order. D. 111 ¶ 33; D. 126 ¶ 33. Between November 14, 2014 and November 19, 2014, Leader informed her thesis advisors that she had been dealing with “interpersonal issues” and Leader received an extension on a thesis deadline. D. 111 ¶¶ 34, 36; D. 126 ¶¶ 34, 36. In December 2014, in the dining hall, Doe passed Leader's table and gave Leader a “glaring” look that upset her. D. 126 ¶ 39; D. 135 ¶ 39. On December 15, 2014, Leader emailed Miller to discuss a no-contact order again and the two planned to meet the next morning. D. 111 ¶ 38; D. 126 ¶ 38. Leader then cancelled the meeting with Miller, indicating that she was not “as set on” getting the no-contact order as she had thought when she had emailed Miller the previous evening. D. 111 ¶ 39; D. 126 ¶ 39; D. 111-20 at 1.

         On February 3, 2015, Leader filed a complaint with ODR against Doe. D. 111 ¶ 50; D. 126 ¶ 50. On February 6, 2015, Ilissa Povich, an ODR investigator, informed Leader that she could choose to have a personal advisor present to any interviews with the investigative team. D. 111 ¶ 52; D. 126 ¶ 52. Leader chose as her personal advisor Alyssa Green (“Green”), the Survivor Advocate at OSAPR. D. 111 ¶¶ 47, 52; D. 126 ¶¶ 47, 52. On February 12, 2015, the lead investigator from ODR, William McCants, interviewed Leader. D. 111 ¶¶ 47, 54; D. 126 ¶¶ 47, 54. On February 23, 2015, ODR officially opened the investigation and notified Doe of the investigation. D. 111 ¶ 55; D. 126 ¶ 55. On February 24, 2015, Miller and Leader again discussed the possibility of a no-contact order. D. 111 ¶ 57; D. 126 ¶ 57. On March 1, 2015, Leader declined the no-contact order. D. 111 ¶ 61; D. 126 ¶ 61. On March 5, 2015, Leader reported to Green that a friend of Doe's, A.J., had been “staring at [Leader] very intensely and to be very interested in what [Leader had] to say, ” and that A.J. may have been eavesdropping on her. D. 111 ¶ 64; D. 126 ¶ 64. On March 20, 2015, Leader reported to ODR “some possible harassment” by Doe's friends. D. 111 ¶ 65; D. 126 ¶ 65. She indicated that her “hope in contacting [ODR] was that you might be able to reach out to the respondent and let him know that that the behavior of his friends . . . [had made her] quite uncomfortabl[e], ” but that she was “not concerned that this rises to the level of retaliation.” D. 112-7. On March 27, 2015, ODR investigators questioned Doe regarding the incidents of harassment by Doe's friends. D. 111 ¶ 71; D. 126 ¶ 71.

         On the evening of April 1, 2015, Leader contacted Detective Amy Zielinski of the Harvard University Police Department to inquire about getting a civil abuse prevention order against Doe, and was informed that a restraining order would require Doe to move out of Cabot House. D. 111 ¶ 86; D. 126 ¶ 86. As of that time, it is uncontested that Doe himself had not been harassing Leader, although Doe was present in the common spaces of Cabot House. D. 111 ¶¶ 83, 106, 108; D. 126 ¶¶ 83, 106, 108. On April 12, 2015, Leader emailed Green to report that Doe and his friends were eating lunch on the deck outside the entryway to Leader's dorm, which frustrated Leader. D. 126 ¶ 47; D. 135 ¶ 47. On April 27, 2015, Leader met with Detective Zielinski to discuss Leader's options for obtaining an abuse prevention order. D. 111 ¶ 115; D. 126 ¶ 115. Leader, accompanied by Detective Zielinski, then applied for and was granted an abuse prevention order by the Cambridge District Court that would remain in place until May 7, 2015. D. 111 ¶ 117; D. 126 ¶ 117. That same day, Harvard College served Doe with the abuse prevention order and moved Doe out of Cabot House. D. 111 ¶ 118; D. 126 ¶ 118. On May 7, 2015, the Cambridge District Court held a hearing regarding whether to extend the abuse prevention order. D. 111 ¶ 127; D. 126 ¶ 127. At that hearing, Leader's attorney stated that Doe had continued to engage in harassment “into 2015” and that “recent harassment” included Doe coming to the café at which Leader worked and yelling her. D. 111 ¶ 129; D. 126 ¶ 129. Leader later testified at her deposition that Doe had not yelled at her at any point since Leader filed the ODR complaint. D. 111 ¶ 130; D. 126 ¶ 130. At the conclusion of the hearing, the Cambridge District Court extended the abuse prevention order until September 4, 2015. D. 111 ¶ 131; D. 126 ¶ 131. On May 17, 2015, Leader emailed Miller to inform Miller that Doe had disclosed to several people that Leader had filed an ODR report against him and that this disclosure had consequences on Leader's social life at the college. D. 126 ¶ 60; D. 135 ¶ 60.

         In the meantime, the ODR investigation was continuing. On February 24, 2015, Doe requested a two-week extension to respond to the investigation, which he received. D. 111 ¶¶ 56, 58; D. 126 ¶¶ 56, 58. On March 16, 2015, Doe responded to the complaint with a witness list and exhibits. D. 111 ¶ 66; D. 126 ¶ 66. On March 23, 2015, ODR shared redacted versions of Doe's response and exhibits with Leader. D. 111 ¶ 67; D. 126 ¶ 67. On March 26, 2015, Leader submitted a witness list and certain exhibits to ODR. D. 111 ¶¶ 69-70; D. 126 ¶¶ 69-70. Between March 31, 2015 and April 13, 2015, ODR investigators interviewed sixteen witnesses, including all of Leader's proposed witnesses, and interviewed both Doe and Leader on multiple occasions. D. 111 ¶¶ 72-74; D. 126 ¶ 72-74. On April 10, 2015, Leader submitted additional documentary evidence to ODR, which included information regarding the purported harassment by Doe's friends. D. 111 ¶ 105; D. 126 ¶ 105.

         On May 11, 2015, Leader submitted an additional complaint to ODR regarding what she alleged were Doe's continued harassment and intimidation directly and via third parties. D. 111 ¶ 135; D. 126 ¶ 135. On May 14, 2015, McCants notified Leader that ODR would also investigate the additional complaint and address in in its final report. D. 111 ¶ 137; D. 126 ¶ 137. Between May 20 and May 22, 2015, ODR interviewed three additional witnesses regarding the allegations in the additional complaint. D. 111 ¶ 141; D. 126 ¶ 141. On May 22, 2015, Leader submitted written materials to ODR regarding the allegations in the additional complaint. D. 111 ¶ 142; D. 126 ¶ 142. At some point in May 2015, Leader graduated from Harvard College, with her thesis complete. D. 111 ¶ 1; D. 126 ¶ 1.

         On July 17, 2015, ODR issued its draft report finding that Doe had not violated Harvard policy and that Doe's friends had not violated Harvard policy as well. D. 111 ¶¶ 144-145; D. 126 ¶¶ 144-145. On July 20, 2015, Leader provided comments on the draft report. D. 111 ¶ 147. On July 27, 2015, ODR issued its final, 79-page report. D. 111 ¶ 148; D. 126 ¶ 148. Leader filed an appeal on July 31, 2015, which was denied on August 14, 2015. D. 111 ¶ 149; D. 126 ¶ 149. On August 18, 2015, the Administrative Board issued its finding that there was no violation of Harvard College policy. D. 111 ¶ 150; D. 126 ¶ 150. Leader filed a request for reconsideration of that decision on August 24, 2015, which was denied on September 1, 2015. D. 111 ¶¶ 151-152.

         During the course of the ODR investigation and adjudication, Doe was represented by Ruth O'Meara-Costello (“O'Meara-Costello”). D. 126 ¶ 67; D. 135 ¶ 67. Over the course of the investigation, O'Meara-Costello sent multiple letters to the General Counsel of Harvard, criticizing Harvard's investigation and arguing that Harvard may have violated the Title IX rights of Doe by mishandling the investigation. D. 126 ¶¶ 69-72; D. 135 ¶¶ 69-72.

         In 2014 and 2015, public criticism of Harvard's policy regarding sexual misconduct came from both survivors of sexual assault and people concerned about the rights of those accused of sexual misconduct. D. 126 ¶¶ 17-20, 22-24; D. 135 ¶¶ 17-20, 22-24. On December 30, 2014, the Department of Education's Office of Civil Rights entered into a resolution agreement with Harvard in which Harvard ...


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