Fryberger v. University of Arkansas

          OPINION AND ORDER

          P.K. HOLMES, III U.S. DISTRICT JUDGE

         Before the Court are Defendants University of Arkansas and Board of Trustees of the University of Arkansas's (the “University”) motion (Doc. 42) for summary judgment, brief (Doc. 44) in support, statement of undisputed facts (Doc. 43), and accompanying exhibits. Plaintiff Elizabeth Fryberger filed a response (Doc. 50) in opposition, a response to the University's statement of undisputed facts (Doc. 51), and exhibits in support of her response (Docs. 52 and 53). The University filed a reply (Doc. 54) and a response (Doc. 55) to Fryberger's statement of undisputed facts. The Court held a hearing on the motion on July 23, 2019. After reviewing the record and considering the parties' arguments at the hearing, the motion will be GRANTED in part and DENIED in part.

         I. Background

         A. The Assault

         In the Fall semester of 2014, Elizabeth Fryberger was a student at the University of Arkansas in Fayetteville and member of the women's tennis team. Shortly after she arrived on campus, she met Raymond Higgs, another student-athlete, through an online dating app. Fryberger and Higgs had a consensual sexual encounter on one occasion prior to October 20, 2014. On the evening of October 20, Higgs went to Fryberger's dorm room located at the Northwest Quads. Fryberger opened the locked doors and allowed Higgs to enter her dorm, escorted Higgs to her upstairs suite, and led him to her private dorm room. At some point that night, Higgs sexually assaulted Fryberger in her dorm room. After Higgs left her room, Fryberger immediately contacted Dr. Michael Johnson, the University's Director of Clinical and Sports Psychology, and requested a meeting for the following day.

         B. The University's Response

         The next morning, October 21, 2014, Fryberger contacted Julie Martin, a trainer for the women's tennis team, and asked to be excused from practice that day. Fryberger confided in Martin through a series of text messages and described the assault. Martin excused Fryberger from practice. Martin offered support and discussed Fryberger's options going forward, such as reporting the assault to the police and University administration. Martin then contacted Monica Holland, the interim Title IX Coordinator, and reported Fryberger's allegation of sexual assault. Martin contacted Fryberger periodically in the days following the assault to inquire about her well-being.

         At noon that day, Fryberger met with Dr. Johnson. Fryberger told Dr. Johnson she had been the victim of a sexual assault. Dr. Johnson provided counseling and treatment. Dr. Johnson told Fryberger to make a follow-up appointment if she felt she needed to meet with him again.^[1]Fryberger acknowledges that Dr. Johnson's therapy sessions were intended to help her cope with being a victim of sexual assault.

         Later that same afternoon, Holland met with both Fryberger and Martin. Holland and Fryberger discussed proceeding forward with the University's disciplinary process and whether to involve the University's police department. Holland asked Fryberger whether Fryberger felt safe on campus, whether she had any classes with Higgs, and discussed academic accommodations and resources. The parties dispute whether Holland discussed the possibility of a no-contact order and whether Holland discussed the option of changing rooms during that meeting. Holland testified at her deposition that both topics were discussed, but Fryberger testified that she does not recall those topics being discussed. Holland and Fryberger also discussed having a forensic examination of Fryberger performed at a hospital.

         At 6:00 pm that evening, EmmaLe Anne Davis, a University victim advocate, drove Fryberger to Willow Creek Women's Hospital. At Willow Creek, a sexual assault examination was performed. Fryberger and Davis then went to the University police station and met with Captain Greg Foster (“Captain Foster”)^[2] of the University's police department. Captain Foster interviewed Fryberger about the assault. Davis was present during the interview. Captain Foster also provided Fryberger with information for victims of sexual assault, including a Crime Victim Information Sheet with information on victim-assistance programs and counseling services. Captain Foster told Fryberger he intended to speak with Higgs the following day and would instruct Higgs not to contact Fryberger. Captain Foster told Fryberger to contact him if Higgs attempted to contact her. Later that same day, the University's police department searched Fryberger's room for evidence of the assault.

         Captain Foster met with Higgs the following day, October 22. Captain Foster questioned Higgs about the night of the assault. Higgs denied sexually assaulting Fryberger. Captain Foster twice instructed Higgs not to contact Fryberger. Neither party disputes the effectiveness of this verbal no-contact order. Higgs directly contacted Fryberger only one time after his discussion Captain Foster when he attempted to follow Fryberger on a social media platform in May 2015.

         On October 22, Melissa Harwood-Rom, Dean of Students and Senior Associate Vice Chancellor for Student Affairs, learned Fryberger had reported a sexual assault. Harwood-Rom instructed her administrative assistant, Marilyn J. Smith, to email Fryberger's professors. Smith's email indicated Fryberger would be absent from classes held on October 22 through October 24.

         On October 28, approximately one week after the assault, Fryberger met with Mary Wyandt-Hiebert, Director of the University's Office of Support, Training Advocacy, & Resources. Wyandt-Hiebert discussed various resources available to Fryberger. On October 29, the University's police department concluded its investigation and Captain Foster submitted the findings to the Washington County Prosecutor's Office to determine whether charges should be filed against Higgs.^[3]

         On November 5, 2014, Fryberger emailed Holland and asked that the University contact her professors about additional absences. Holland forwarded the email to Nicole Ferguson, a case manager in the Dean of Students Office. Ferguson contacted Fryberger's professors the following day as requested and indicated Fryberger was “having some difficulty” and stated they were hopeful “she will be able to work with you and make things up she may have missed.” On November 8, 2014, Julie Fryberger, Elizabeth Fryberger's mother, emailed various University officials, including Wyandt-Hiebert, Holland, Ferguson, and Ashley McNamara, an investigator for the Office of Student Standards and Conduct. According to Julie Fryberger, her daughter intended to return to Colorado on November 10 for an unknown length of time. However, Julie Fryberger was clear Fryberger was not dropping out of school and would be returning at some point in the future. Julie indicated Fryberger was “crying too much and everything reminds her of what happened. After all she is still in the same room.” (Doc. 42-17, p. 2). Julie Fryberger inquired about the possibility of changing rooms upon Fryberger's return.

         On November 10, 2014, Fryberger returned to Colorado. Holland responded to Julie Fryberger's email, providing details about changing Fryberger's room and offered to discuss academic accommodations. Wyandt-Hiebert emailed Fryberger directly to remind her of the University's resources and indicated she would assist Fryberger in a room change. On November 11, McNamara also emailed Fryberger about changing rooms. On November 12, Fryberger emailed both Wyandt-Hiebert and McNamara, indicating she considered changing her room a “potential option.” On November 13, Wyandt-Hiebert emailed Fryberger to address concerns Fryberger was having about classes and other resources, and provided assurances that she would assist Fryberger with a victim impact statement that would be submitted to the disciplinary panel reviewing the allegations against Higgs.

         On November 17, 2014, Fryberger emailed Holland about changing her room. Fryberger asked about her living options in the event she returned to school after Thanksgiving. Fryberger asked, “Would [that] still be the quads?” Holland indicated Fryberger could move to Maple Hill, a separate residence hall, upon her return. Holland also told Fryberger there would be other housing options after the Fall semester. On November 18, Marilyn Smith, Harwood-Rom's assistant, emailed Fryberger's professors inquiring about Fryberger's academics. Specifically, she sought information concerning Fryberger's status in her classes, course requirements, and options for the semester. That same day, Wyandt-Hiebert emailed Fryberger and offered to schedule a meeting to address any ongoing questions or concerns.

         On November 19, Harwood-Rom convened a meeting with a Critical Incident Response Team (“CIRT”) to assess options to assist Fryberger with her coursework. At that meeting, Harwood-Rom designated Ferguson to serve as the University's primary contact with Fryberger in an effort to simplify the line of communication between Fryberger and the University. The CIRT team also discussed academic accommodations, including the possibility of taking classes remotely and extending time for tests.

         In late November, Fryberger retained the services of Laura Dunn, a victim advocate adviser. Fryberger alleges she needed to obtain the services of Dunn because no progress had been made with respect to obtaining accommodations. On November 26, Dunn emailed school administrators, including University Chancellor David Gearhart, requesting “academic and living accommodations” for the semester “that will ensure she is able to continue her education free from any ongoing hostile environment created by this campus sexual assault.” Dunn's email suggests Fryberger was still having some difficulty obtaining certain accommodations. Fryberger does not dispute the University eventually provided her with all the accommodations Dunn requested on her behalf.

         C. The Initial Hearing

         Around October 28, 2014, the University's Office of Student Standards and Conduct (“OSSC”) began its own investigation of the incident. Ashley McNamara, the investigator for the OSSC, met with Fryberger on November 5, 2014. McNamara interviewed Fryberger as part of the OSSC investigation and offered to have a written no-contact order issued. Fryberger agreed and a written no-contact order was issued and sent to Higgs. The order instructed Higgs to have no contact with ...