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Rex v. West Virginia School of Osteopathic Medicine

United States District Court, S.D. West Virginia, Beckley Division

April 12, 2017

NICOLE REX, Plaintiff,



         The Court has reviewed the Defendant's Motion for Summary Judgment (Document 100), the Memorandum of Law in Support of Defendant West Virginia School of Osteopathic Medicine's Motion for Summary Judgment (Document 101), the Motion for Entry of Summary Judgment on Behalf of Defendant West Virginia School of Osteopathic Medicine (Document 112), the Plaintiff's Response to Defendant's Motion for Entry of Summary Judgment on Behalf of Defendant West Virginia School of Osteopathic Medicine (Document 114), and the Defendant's Reply to Plaintiff's Response to Defendant's Motion for Entry of Summary Judgment (Document 118). For the reasons stated herein, the Court finds that the motion for entry of summary judgment should be denied and the motion for summary judgment should be granted.


         Plaintiff Nicole Rex initiated this action with a Complaint (Document 1) filed on January 23, 2015. Her first amended complaint was filed on February 23, 2015. In the amended complaint, she named the following defendants: West Virginia School of Osteopathic Medicine (WVSOM); Michael Adelman, in his official and individual capacity; Leslie Bicksler, in her official and individual capacity; Elaine Soper, in her official and individual capacity; Jeffrey Shawver, in his official and individual capacity; and Tiffany Wright. On June 8, 2015, she filed a Stipulation of Voluntary Dismissal of Defendants Jeffrey Shawver and Tiffany Wright (Document 27). The Defendants filed a motion to dismiss, which the Court granted in part and denied in part in a Memorandum Opinion and Order (Document 30) filed on August 11, 2015. The Plaintiff subsequently voluntarily dismissed claims against the individual defendants, leaving WVSOM as the sole defendant. The causes of action that remain pending are Title IX claims, invasion of privacy, unauthorized practice of law, and intentional infliction of emotional distress.

         Ms. Rex was a first year medical student at WVSOM in 2012. She alleges, in short, that a fellow student, D.M., drugged and raped her after she had been drinking at an off-campus party they both attended on August 31, 2012. She reported the alleged rape to WVSOM, and asserts in her complaint that the school mishandled the investigation and created such a hostile environment that she was forced to withdraw and transfer to another medical school. WVSOM moved for summary judgment on January 25, 2017, the deadline for filing such motions. (See Document 95, granting joint motion to extend the dispositive motions deadline to January 25, 2017.) The Plaintiff filed no response within the fourteen-day response period. On February 28, 2017, the Defendant filed its motion for entry of summary judgment, based on the Plaintiff's failure to respond. On March 7, 2017, the Plaintiff responded to the motion for entry of summary judgment, asserting that ongoing discovery issues preclude a response to the motion for summary judgment.

         Because the Plaintiff has not responded to the motion for summary judgment, [1] the facts that follow are based exclusively on the Defendant's motion and attached exhibits. The facts are, however, described in the light most favorable to the Plaintiff as the non-moving party.

         Ms. Rex attended an off-campus “Around the World” party, [2] hosted and attended by fellow WVSOM students, in the evening of August 31, 2012, and extending into the morning of September 1, 2012. She met D.M. at the first apartment, when he arrived with a bottle of Jägermeister and offered shots to those present. Ms. Rex accepted, and D.M. continued to provide her with shots as the party moved to the second apartment. D.M. claimed, in his written response to Ms. Rex's complaint, that he “asked Nicole if she really wanted to keep doing shots, telling her that this was a lot to start off with, ” and she responded that she was used to partying hard. (D.M. Response) (Document 100-3.) Two student witnesses observed Ms. Rex and D.M. flirting, dancing, and kissing during the party, though Ms. Rex does not recall kissing or making out with D.M. Another saw Ms. Rex hanging out, flirting, and taking shots with D.M. Ms. Rex and D.M. separated for a time, and Ms. Rex does not remember any events after the third apartment, at which she arrived around 11:00 p.m. None of the student witnesses interviewed by WVSOM recalled speaking with Ms. Rex or directly interacting with her during the time period she is unable to recall. Ms. Rex and D.M. apparently met up again at the last apartment where the party was held, around 1:30 a.m. D.M. brought Ms. Rex with him to a friend's nearby apartment.

         When Ms. Rex awoke around 4:30 a.m., D.M. was on top of her, penetrating her. She did not know where she was or who he was at that point, and was still intoxicated and confused. Ms. Rex accompanied D.M. to Hardee's for breakfast, and then returned to D.M.'s apartment. D.M.'s roommate let them in shortly after 5:00 a.m., and told the WVSOM investigators that Ms. Rex appeared to be there voluntarily, and D.M. did not appear to be intoxicated at that point. The roommate also reported observing D.M. and Ms. Rex cuddled together at 10:00 a.m., when he entered D.M.'s bedroom to borrow his car keys, and around noon, when he returned the keys. Ms. Rex disputes that they were “cuddled” together, but also reported that she slept for some hours during the morning. D.M. admitted to smoking marijuana both during the party, where he shared it with other students, and at his apartment.

         Another sexual encounter took place at D.M.'s apartment. Ms. Rex was afraid active resistance would trigger greater aggression from D.M., and instead curled up in the corner of the bed, engaged in conversation, told him it hurt, and tried to show how uncomfortable she was through passive resistance. Her conversation included asking what had happened the night before, how it had escalated, and telling him she would not have realized they had had sex if not for how sore she was. He pulled her into position, removed her pants, told her to fellate him, pinned her wrists down, and began penetrating her, then returned to demanding oral sex. In her deposition, Ms. Rex indicates that, though she did not explicitly say no, she “would ask like do I have to do this and he would proceed.” (N. Rex Depo. at 59::11-12) (Document 100-4.) When she complained of soreness, D.M. said it was “not uncommon for [him] to make girls sore” and stated that the vagina is “made to take a beating.” (D.M. Resp.) D.M. then drove Ms. Rex back to the apartment where she had left her car and keys. She reported that her arm and wrist were sore, and she experienced vaginal bleeding for several days thereafter.

         Ms. Rex told a study partner and a friend/mentor who was a second-year student what had happened to her on September 5, 2012. Her friend suggested she report it to Dean John Schriefer, the Associate Dean of Preclinical Students, and set up an appointment for her to meet with him.[3]Prior to the meeting, Dr. Schriefer informed WVSOM President Michael Adelman and Dean Pence, Vice President for Academic Affairs of the matter. On September 6, 2012, Dr. Schriefer, his assistant Deborah Harvey, Ms. Rex, and the two fellow students met. Ms. Rex described the incident, which is recounted in WVSOM's summary of the investigation. It is noted that Ms. Rex “stated that she had been drinking, but did not think she had had enough to suffer a blackout, ” and stated that her “memory was hazy” for some time after she woke up to D.M. having sexual intercourse with her. (WVSOM Inv. Notes at 1) (Document 100-7.)

         The group proceeded to the Lewisburg Police Department to report the sexual assault. A detective interviewed Ms. Rex privately for about an hour, after which she and her friends went to the Greenbrier Valley Medical Center for an examination. Dr. Schriefer reported back to President Adelman and Dean Pence. President Adelman met with Dean Pence, Marilea Butcher, the Associate Vice President for Administrative Affairs, Denise Getson, Director of Marketing & Public Relations, Dr. Elaine Soper, Title IX Officer, and Leslie Bicksler, Associate Vice President for Human Resources. Dr. Soper and Ms. Bicksler agreed to launch an investigation. They met with Dr. Schriefer on September 7, 2012, to receive an update.

         As WVSOM began its investigation, Ms. Rex, at the recommendation of the detective to whom she reported the incident, pursued a Personal Safety Order in the Greenbrier County Magistrate Court. WVSOM was informed on September 10, 2012, that D.M. had been served with a preliminary Personal Safety Order. On September 12, 2012, Ms. Rex signed a formal sexual harassment complaint for WVSOM. On September 14, 2012, D.M. met with Dr. Schriefer to give a statement with his side of the story. He said that he and Ms. Rex both had about seven shots of Jagermeister at the second apartment, then met up again at the fourth apartment, where he invited her to leave with him. They made out, had sex, slept, went to Hardee's for breakfast, returned to his apartment, had sex again, and he dropped her off at her car. D.M. asserted that he believed all sexual contact was consensual. On September 18, 2012, WVSOM gave both Ms. Rex and D.M. a No-Contact Order barring them from contacting one another in any way, including via a third party.

         While the investigation was ongoing, WVSOM offered Ms. Rex an escort on campus. WVSOM indicates that she rejected the escort, and Ms. Rex indicates that he was not always available. Dr. Schriefer or his assistant often escorted her to classes or monitored the hallways before and after classes. She was given a parking spot next to Dr. Schriefer's office. WVSOM offered her a medical leave of absence, which she declined at that time. She did receive extensions for meetings, excused absences for classes, and extensions for tests and assignments. She was also provided with a packet of information, including forms to complete to initiate the complaint process, on September 19. That information included counseling resources, and Ms. Bicksler and Ms. Soper made a first appointment for Ms. Rex to meet with a counselor.

         The Magistrate Court of Greenbrier County held a personal safety hearing on September 19. Ms. Rex had heard that D.M. planned to have an attorney present, and asked President Adelman, who she believed to be an attorney, [4] whether she needed counsel at the hearing.President Adelman told her that she did not need a lawyer, and said that Dr. Schriefer could be at the hearing with her. Around the time of the hearing, Ms. Bicksler and Dr. Soper told Dr. Schriefer he needed to remain neutral. Dr. Schriefer therefore avoided Ms. Rex at the hearing, and she ultimately sought a continuance so that she could appear with counsel. The hearing was continued to September 25, and the magistrate granted a two-year personal safety order, which was later reversed on appeal in the Circuit Court of Greenbrier County.

         Ms. Rex submitted her formal complaint on October 2, 2012, and D.M. submitted his response on November 19, 2012. On December 3, 2012, Ms. Rex submitted a response, disputing some of the details in D.M.'s account. She specifically states that her first recollection after leaving the apartment representing France was “waking up to him being on top of me and penetrating me.” (N. Rex Inv. Reply) (Document 100-17 at 54.) She describes the second encounter, and her attempts to resist it, as follows:

I told him I didn't remember anything of the night before and I wouldn't have thought anything happened except that I did hurt. I also started asking a plethora of questions as to what happened, where did we go, how did things escalate, etc. I never initiated sex, oral sex, or anything of that nature. There was not foreplay, cuddling, kissing, and multiple positions. There was only him unbuttoning my pants and pinning me down by my wrists, telling me to orally please him and/or pulling me to the edge of the bed to do so. Since he didn't seem to care about what I considered obvious discomfort, I hesitantly would do as I was told.


         Ms. Rex complains that WVSOM did not keep her informed about the process during the course of the investigation, often telling her it would be concluded soon, then not updating her for weeks. WVSOM gave D.M. extensions to file his response, with the result that Ms. Rex thought the investigation was near completion when his response had not even been submitted. In addition, WVSOM began an investigation of Ms. Rex's aunt, a WVSOM employee with whom she lived, during her pursuit of the sexual harassment/discrimination complaint. Between that investigation, the no-contact order, the inconsistent advice from Dr. Schriefer about whether to support her, and advice from WVSOM that she keep the case confidential and not discuss it with other students, Ms. Rex said that she felt isolated. She felt that her support system was being pulled away from her. A WVSOM employee who was a friend (and a sexual partner) of D.M. had conversations with WVSOM students about Ms. Rex in relation to her complaint, though the extent of those conversations is unclear. Students would ask her if she was “the first year that's been raped.” (N. Rex Depo., at 144::16-17.) Handwritten WVSOM notes from a September 19, 2012 meeting indicate that the matter was being discussed on campus, and it “feels like he's bragging” causing her to “feel[] stuck on that weekend” and subject to “millions of questions.” (9/19/12 WVSOM Notes) (Document 100-13.)[5] One of D.M.'s friends posted a message on Facebook reading: “I woke up in a nice hotel in my underwear with no memory of how I got there. Here's to an amazing birthday that I'll remember only parts of! Thanks boys!” (C.W. Facebook post) (Document 100-38.) D.M. was “tagged” in the post.

         WVSOM's investigation included several student interviews. Three student witnesses recounted separated experiences unrelated to Ms. Rex's complaint in which D.M. solicited them for sex in a manner that made them uncomfortable. Each was able to decline further interactions without D.M. becoming aggressive, however. Other witnesses, as described above, recounted their observations and interactions with Ms. Rex and D.M. during the night of the party and the morning after. None spoke with or directly interacted with Ms. Rex after she left the third apartment, the time period she cannot recall, though one witness reported seeing her making out with D.M. during that time.

         WVSOM completed a final report of the investigation on December 10, 2012, and provided it to both parties. The report summarizes the statements by Ms. Rex and D.M., as well as the witnesses. WVSOM noted that witnesses at the party, as well as D.M.'s roommate, reported “contact of a sexual nature…which was consensual by both parties, ” and that D.M. claimed to offer to take her home and ask if she wanted to stop. (WVSOM Investigation Report at 11) (Document 100-17.) WVSOM did not otherwise indicate that it made any credibility determinations favoring either party, to the extent their accounts were inconsistent. Ultimately, WVSOM concluded that it was unclear whether any type of force, including coercion, was used during the first sexual contact “as the complainant is unable to provide any evidence, ” and that “there is not a preponderance of evidence that any type of force was used in the second sexual contact.” (Id.) The report notes that D.M. “appeared to believe that he had her consent for the first encounter and since nothing had changed he also continued to have her consent in the second encounter.” (Id.) WVSOM found that it was more likely than not that Ms. Rex was incapacitated during the first sexual encounter, and that “her ability to make decisions may be questionable, given that she may have still been under the influence of alcohol and believe herself to be in the midst of a sexual assault” as to the second. (Id. at 12.) However, it also concluded that “[t]here is not sufficient evidence to show that the respondent knew or should have reasonably known that she was incapacitated and therefore unable to give consent.” (Id.)

         Ultimately, WVSOM found Ms. Rex's sexual harassment claim “unfounded.” “[G]iven the evidence presented, it was felt that a reasonable person would not have known that the complainant was incapacitated or that the sexual act[s] were not consensual.” (Id. at 13.) It concluded:

We believe by a preponderance of the evidence that the complainant was in a black out state and unable to provide consent. Further, we also determined, based on all the evidence presented by the complainant as well as witnesses, that a reasonable person would not have known that she was incapacitated and therefore unable to give consent. The preponderance of evidence ...

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