Butters v James Madison University Pretrial Motions Job # 28170 1 UNITED STATES DISTRICT COURT 2 WESTERN DISTRICT OF VIRGINIA 3 Page 1 7/28/2015 HARRISIONBURG 4 ******************************************************* 5 SARAH ELIZABETH BUTTERS, 6 Plaintiff, 7 -vs- 8 JAMES MADISON UNIVERSITY, 9 10 Case No. 5:15-cv-00015-EKD-JGW Defendant. ******************************************************* 11 PROCEEDINGS BEFORE 12 THE HONORABLE ELIZABETH K. DILLON, JUDGE 13 PRETRIAL MOTIONS 14 1:55 p.m. to 2:46 p.m. 15 Tuesday, July 28, 2015 16 Harrisonburg, Virginia 17 18 19 20 21 22 23 24 Job No. 28170 25 Reported by: (434) 293-3300 www.cavalier-reporting.com Wendy R. Sugrue Reported by41 Wendy R. Sugrue (800) 972-1993 Case 5:15-cv-00015-EKD-JCH Document Filed 11/06/15 Page 1 of 51 Pageid#: 267 Cavalier Reporting & Videography info@cavalier-reporting.com Butters v James Madison University Pretrial Motions Job # 28170 1 Page 2 7/28/2015 Proceedings before the Honorable Elizabeth K. 2 Dillon, Judge, reported by and before Wendy Sugrue, 3 Notary Public in and for the Commonwealth of Virginia 4 at large, commencing at 1:55 p.m., July 28, 2015, at 5 the United States District Court for the Western 6 District of Virginia, Harrisionburg. 7 8 APPEARANCES OF COUNSEL: 9 ALLEN, ALLEN, ALLEN & ALLEN 10 3504 Plank Road 11 Fredericksburg, Virginia 22407 12 540.736.0339 13 BY: 14 WILBUR COLEMAN ALLEN, JUNIOR, ESQUIRE coleman.allen@allenandallen.com 15 and CHRISTOPHER JAMIESON TOEPP, ESQUIRE 16 Counsel for Plaintiff 17 18 OFFICE OF THE ATTORNEY GENERAL 19 900 East Main Street 20 Richmond, Virginia 23219 21 804.786.1192 22 BY: 23 NICHOLAS FOIS SIMOPOULOS nsimopoulos@oag.state.va.us 24 and MERISSA ROUZER 25 Counsel for Defendant (434) 293-3300 www.cavalier-reporting.com Reported by41 Wendy R. Sugrue (800) 972-1993 Case 5:15-cv-00015-EKD-JCH Document Filed 11/06/15 Page 2 of 51 Pageid#: 268 Cavalier Reporting & Videography info@cavalier-reporting.com Butters v James Madison University Pretrial Motions Job # 28170 1 (1:55 p.m., July 28, 2015:) 2 P R O C E E D I N G S 3 THE COURT: 4 clerk to call the next case? 5 THE CLERK: 6 Page 3 7/28/2015 Good afternoon. I'll ask the Sara Elizabeth Butters versus James Madison University, Civil Action 5:15-cv-15. 7 THE COURT: 8 I wanted to note something for the record 9 Thank you. before we begin today. I notified all counsel by 10 e-mail yesterday so they would be advised that when I 11 was in college, I was a member of the same sorority as 12 Ms. Butters, according to the allegations in the 13 complaint, and wanted make sure no parties had any 14 concerns about the appearance of impropriety. 15 And everyone has indicated that there is no 16 concern, no objection to me proceeding over this case. 17 I wanted to note that for the record. 18 We're here on a motion to dismiss by 19 James Madison University. 20 the defendant. 21 22 MR. SIMOPOULOS: So I'll hear argument from Thank you, Your Honor. Good afternoon. 23 My name is James Simopoulos. 24 the 25 of James Madison University. I'm here from Virginia Attorney General's Office, here on behalf (434) 293-3300 www.cavalier-reporting.com We're here on a motion to Reported by41 Wendy R. Sugrue (800) 972-1993 Case 5:15-cv-00015-EKD-JCH Document Filed 11/06/15 Page 3 of 51 Pageid#: 269 Cavalier Reporting & Videography info@cavalier-reporting.com Butters v James Madison University Pretrial Motions Job # 28170 1 dismiss. 2 3 Page 4 7/28/2015 We ask the Court to grant our motion to dismiss in this case with prejudice. 4 Your Honor, as you know, the plaintiff filed a 5 complaint on March 3, 2015 against JMU, alleging that 6 JMU had violated her right, under Title IX, to be free 7 from harassment on the basis of sex while in college. 8 9 She alleged that JMU was deliberately indifferent in its response, both to the complaint of 10 sexual harassment and assault, which said that she had 11 brought to their attention back in the spring of 2013. 12 The claim involved the creation and dissemination of a 13 cell phone video by three males who were on spring 14 break in Panama City, Florida. 15 that JMU was deliberately indifferent to her claim in 16 2013 because, in part, the hearing process and the 17 punishment imposed were insufficient. 18 The plaintiff alleges Your Honor, the complaint should be dismissed 19 in its totality -- I'm sorry. 20 circumstances in the complaint more than sufficiently 21 establishes that JMU responded not only appropriately 22 to the claim, but also was not deliberately 23 indifferent. 24 25 The totality of the Because the plaintiff has not alleged a sufficient or plausible claim of a Title IX violation, (434) 293-3300 www.cavalier-reporting.com Reported by41 Wendy R. Sugrue (800) 972-1993 Case 5:15-cv-00015-EKD-JCH Document Filed 11/06/15 Page 4 of 51 Pageid#: 270 Cavalier Reporting & Videography info@cavalier-reporting.com Butters v James Madison University Pretrial Motions Job # 28170 1 Page 5 7/28/2015 we ask the Court dismiss the case. 2 As Your Honor knows, in a Rule 12(b)(6) motion 3 to dismiss, Your Honor is to assume the truth of the 4 well-pled factual allegations in the complaint, not a 5 party's meager or subjective conclusions, and is to 6 view the allegations in Plaintiff's favor. 7 The Court may also consider documents, 8 including public records that are attached, that were 9 explicitly relied upon in the complaint without 10 converting a motion to dismiss into a motion for 11 summary judgment. 12 in a Title VII case, that's known as a standard, in 13 2013, Fowler versus Department of Conservation and 14 Recreation -- And recently in the Fourth Circuit, 15 THE COURT: 16 Do you think the Court has to consider those 17 Mr. Simopoulos, let me stop you. documents in order to rule in your favor in this case? 18 MR. SIMOPOULOS: Your Honor, I do not think 19 so. 20 and sufficient enough that the Court can rely on the 21 allegations alone. I think that the factual allegations are extensive 22 However, we would ask, without converting 23 matters to a summary judgement, that the Court should 24 consider the documents under precedent. 25 think that they're necessary to resolve this claim in a (434) 293-3300 www.cavalier-reporting.com But I don't Reported by41 Wendy R. Sugrue (800) 972-1993 Case 5:15-cv-00015-EKD-JCH Document Filed 11/06/15 Page 5 of 51 Pageid#: 271 Cavalier Reporting & Videography info@cavalier-reporting.com Butters v James Madison University Pretrial Motions Job # 28170 1 Page 6 7/28/2015 motion to dismiss. 2 So I would answer Your Honor's question: 3 THE COURT: 4 MR. SIMOPOULOS: No. Thank you. Furthermore, with respect to 5 the exhibits, if there is any conflict between the 6 exhibits attached to the complaint and the mere 7 allegations of the complaint, Your Honor knows that an 8 exhibit can prevail. 9 In the end, the plaintiff must establish a 10 claim that is plausible, that is reasonable, not a mere 11 possibility or a sheer possibility of a violation of 12 law. 13 resolving the claim. The Court is to use its judicial common sense in 14 Your Honor, the plaintiff has filed a 15 twenty-page complaint, pleading the pertinent events in 16 this case, which she states, in response to our motion, 17 with painstaking particularity and explicit detail. 18 I'll provide a brief recitation of those facts for the 19 Court. 20 On March 3, 2013, the plaintiff went down with 21 fellow students to Panama City, Florida for a spring 22 break trip. 23 students, including the plaintiff, spent the day on 24 March 3rd socializing along the beach and drinking 25 alcohol. (434) 293-3300 www.cavalier-reporting.com JMU was out of session at the time. The At some point on this date, the three male Reported by41 Wendy R. Sugrue (800) 972-1993 Case 5:15-cv-00015-EKD-JCH Document Filed 11/06/15 Page 6 of 51 Pageid#: 272 Cavalier Reporting & Videography info@cavalier-reporting.com Butters v James Madison University Pretrial Motions Job # 28170 Page 7 7/28/2015 1 students, whom the plaintiff knew from a social circle 2 back at JMU, invited her to their apartment. 3 Your Honor, the plaintiff alleges in the 4 complaint that she has no memory of what happened when 5 she was inside the apartment. 6 however, during the spring break trip, she did learn 7 that a cell phone video had been created and was 8 circulating amongst the students during the trip, 9 depicting these three male students sexually assaulting Later in the trip, 10 her in the bathroom. 11 that video, as the Court knows, separately, under seal, 12 attached as an exhibit to the complaint. 13 The plaintiff filed a copy of Is it okay if I am able to address that video 14 for the Court? 15 sure it's okay with the Court. 16 It is under seal and I want to make THE COURT: I would just caution Counsel to do 17 so in a manner appropriate to this hearing. 18 motion-to-dismiss hearing. 19 affect the argument you're making -- I don't think we 20 need to address it, but to the extent it affects your 21 argument, you may certainly address that. It's a So to the extent it doesn't 22 MR. SIMOPOULOS: 23 Your Honor, we have viewed the video. Thank you, Your Honor. It's 24 ninety seconds long. 25 tell, with the encounter, and is truncated about what (434) 293-3300 www.cavalier-reporting.com It begins, as Your Honor can Reported by41 Wendy R. Sugrue (800) 972-1993 Case 5:15-cv-00015-EKD-JCH Document Filed 11/06/15 Page 7 of 51 Pageid#: 273 Cavalier Reporting & Videography info@cavalier-reporting.com Butters v James Madison University Pretrial Motions Job # 28170 Page 8 7/28/2015 1 occurred in the bathroom either before or after the 2 event, let alone what happened before the parties had 3 entered the bathroom. 4 The video rapidly shifts perspectives and 5 angles such that, many times, you can't even see an 6 image. 7 is inaudible and the words spoken are not entirely 8 discernible. 9 context regarding the activity in the bathroom, other 10 It's hard to follow. Most of the conversation The video provides little information or than showing some of the parties in flashes. 11 Now, the plaintiff returned from spring break 12 and learned that this video was also being disseminated 13 among JMU students in the community, particularly in 14 her social circle. 15 of the students that was involved in the incident had 16 shown the video to one of her sorority sisters. 17 plaintiff does not allege who else was disseminating 18 this video, how it was being circulated, including 19 whether any equipment or facilities under JMU's control 20 were being used. 21 disseminated the video. 22 Your Honor, she mentions that one The No JMU employees were alleged to have Understandably, the plaintiff was concerned. 23 She was upset about the video. 24 sorority advisor, a JMU employee, president of her 25 sorority, and the president of the three males' (434) 293-3300 www.cavalier-reporting.com She met with her Reported by41 Wendy R. Sugrue (800) 972-1993 Case 5:15-cv-00015-EKD-JCH Document Filed 11/06/15 Page 8 of 51 Pageid#: 274 Cavalier Reporting & Videography info@cavalier-reporting.com Butters v James Madison University Pretrial Motions Job # 28170 1 fraternity. 2 immediately expelled these three males from their 3 membership. 4 Page 9 7/28/2015 According to the plaintiff, the fraternity A few weeks later, on April 12, 2013, the 5 plaintiff notified JMU's offices, Office of Judicial 6 Affairs, which is the office that handles Title IX 7 complaints. 8 who was the then-associate director of the Judicial 9 Affairs office. She met with Wendy Young, specifically, The plaintiff explained what had 10 happened and stated that the video was being 11 disseminated at JMU. 12 interactions she was having with her peers in the 13 video. 14 felt victimized by the dissemination. 15 She also described negative She explained that she felt harassed and she In response to this explanation from the 16 plaintiff, Young explained the process of pursuing a 17 complaint pursuant to JMU's policies, specifically with 18 respect to sexual assault and harassment claims against 19 a fellow student. 20 As Your Honor said, Your Honor doesn't need to 21 consider the policy, but because they are integral to 22 and related to the complaint, we have attached a copy 23 there for the Court. 24 25 Young's explanation of the process was both accurate, and reflected JMU's policy that the plaintiff (434) 293-3300 www.cavalier-reporting.com Reported by41 Wendy R. Sugrue (800) 972-1993 Case 5:15-cv-00015-EKD-JCH Document Filed 11/06/15 Page 9 of 51 Pageid#: 275 Cavalier Reporting & Videography info@cavalier-reporting.com Butters v James Madison University Pretrial Motions Job # 28170 Page 10 7/28/2015 1 would have to be involved in a hearing, that it would 2 take time, that it would require the plaintiff to 3 relive events, including explaining them to others. 4 When the plaintiff asked about particular sanctions 5 that could be imposed, Young also explained and 6 cautioned that expulsion was unlikely under the 7 circumstances. 8 9 The plaintiff provided the video to Young and asked that JMU proceed without her involvement. 10 However, as Young explained, the plaintiff was 11 necessary in this process in order to explain the 12 evidence and, among other things, the context of the 13 video, and the charges against the individuals, and the 14 relationships to be included of the individuals 15 involved. 16 So her participation was critical. Because the process also involved the rights 17 of the accused, including the right to examine the 18 evidence and witnesses, Young told the plaintiff that 19 they could not proceed independently. 20 Your Honor, the complaint paints a picture of 21 a plaintiff who is, at this time, not ready to go 22 through the formal process. 23 respected that. 24 the meantime. 25 counselor who could help the plaintiff with the Young understood and she So Young did the next-best thing in She referred the plaintiff to a JMU (434) 293-3300 Reported by R. Sugrue (800) 972-1993 Case 5:15-cv-00015-EKD-JCH Document 41Wendy Filed 11/06/15 Page 10 ofinfo@cavalier-reporting.com 51 Pageid#: 276 www.cavalier-reporting.com Cavalier Reporting & Videography Butters v James Madison University Pretrial Motions Job # 28170 Page 11 7/28/2015 1 difficulty she was having at this time as a result of 2 the dissemination. 3 The plaintiff accepted this help. The plaintiff alleges that after this first 4 meeting, the dissemination of the video went unchecked. 5 Importantly here, the plaintiff has not alleged who was 6 disseminating the video at this time, the location or 7 affiliation of individuals who were disseminating it, 8 or aware that the video was being disseminated, or for 9 how long it was being disseminated. The plaintiff also 10 does not allege in the complaint that she informed 11 anyone after this first meeting about any further 12 dissemination. 13 THE COURT: She did allege -- didn't she -- in 14 Paragraph 47, that she continued to be harassed and 15 victimized through dissemination of the video? 16 MR. SIMOPOULOS: At the time of the meeting, 17 yes, Your Honor, she did allege that. 18 point, there's no allegation of continued dissemination 19 in the complaint. 20 THE COURT: 21 MR. SIMOPOULOS: After that Go ahead. Now, the plaintiff admits in 22 her complaint that she was not left alone after this 23 first meeting. 24 the plaintiff with an e-mail. 25 an e-mail, asked her if she had made any decisions as Admittedly, Young reached out again to She sent the plaintiff (434) 293-3300 Reported by R. Sugrue (800) 972-1993 Case 5:15-cv-00015-EKD-JCH Document 41Wendy Filed 11/06/15 Page 11 ofinfo@cavalier-reporting.com 51 Pageid#: 277 www.cavalier-reporting.com Cavalier Reporting & Videography Butters v James Madison University Pretrial Motions Job # 28170 Page 12 7/28/2015 1 to what she would like to do, and if she was doing all 2 right. 3 Plaintiff does not allege the date of this 4 e-mail. 5 during the period alleged in the complaint, but suffice 6 it to say, with respect to this e-mail, it was a few 7 days within the first meeting. 8 plaintiff does not allege that Young ever heard back 9 from the plaintiff. 10 11 In fact, several e-mails were sent to her Nonetheless, the And the plaintiff decided not to follow-up on the claim. The next contact, instead, came from 12 Plaintiff's father on November 4, 2013, around seven 13 months later. 14 JMU, JMU reiterated to the plaintiff's father that 15 JMU's process to proceed with claims against these 16 fellow students, the same process that was outlined to 17 the plaintiff in April of 2013. 18 the plaintiff eventually decided to do. 19 When he inquired about the claims to This is exactly what More than two months after her father's 20 e-mail, on January 10, 2014, the plaintiff allegedly 21 acknowledged that she could not handle the matter on 22 her own, and decided to file a formal complaint. 23 Within twelve weeks of the filing of that 24 complaint, JMU allegedly issued a no-contact order, 25 investigated her complaint fully, held nine (434) 293-3300 Reported by R. Sugrue (800) 972-1993 Case 5:15-cv-00015-EKD-JCH Document 41Wendy Filed 11/06/15 Page 12 ofinfo@cavalier-reporting.com 51 Pageid#: 278 www.cavalier-reporting.com Cavalier Reporting & Videography Butters v James Madison University Pretrial Motions Job # 28170 Page 13 7/28/2015 1 adjudicatory hearings, including six appeals of right, 2 three of which Ms. Butters, herself, had noticed 3 herself, and found that the students had engaged in 4 sexual misconduct in violation of JMU's policies. 5 On April 13, 2014, JMU imposed a litany of 6 punishments on these three individuals. 7 out in the complaint, Your Honor, the first of which, 8 the students were expelled upon graduation. 9 they were barred from JMU's campus for any reason They are set That is, 10 whatsoever after graduation, including graduate classes 11 and events. 12 They were also barred from participating in 13 their graduation ceremony. 14 having any contact with the plaintiff whatsoever, 15 beginning immediately and through graduation. 16 were barred from campus for any reason whatsoever other 17 than academics or classes, beginning immediately 18 through graduation. 19 They were also barred from They They were barred from participating in student 20 clubs and organizations, beginning immediately through 21 graduation. 22 Judicial Affairs office at JMU, to make a thirty-minute 23 sexual assault presentation to be used in educating 24 other students. 25 And they were required to work at the The plaintiff was dissatisfied with this (434) 293-3300 Reported by R. Sugrue (800) 972-1993 Case 5:15-cv-00015-EKD-JCH Document 41Wendy Filed 11/06/15 Page 13 ofinfo@cavalier-reporting.com 51 Pageid#: 279 www.cavalier-reporting.com Cavalier Reporting & Videography Butters v James Madison University Pretrial Motions Job # 28170 1 process, dissatisfied with the ultimate punishments 2 imposed, and she filed this action. 3 Page 14 7/28/2015 Your Honor, while the plaintiff may be 4 dissatisfied with the process and punishment of JMU, 5 dissatisfaction does not state a plausible claim under 6 Title IX. 7 the process occurred and that punishments were imposed. 8 In other words, the totality of the circumstances do 9 not demonstrate an inappropriate response or deliberate 10 The undisputed facts in this matter are that indifference. 11 In fact, they show quite the opposite. JMU's response was a concern and respect for 12 the plaintiff in her decisions. 13 concern, as it must be, for the fundamental fairness of 14 the other students involved, of the accused and the 15 accuser. 16 The process was also a As Your Honor is well aware, Title IX, 17 20 USC 1681 prohibits subjecting a person to 18 discrimination in any educational program or activity 19 receiving federal financial assistance. 20 In 1999, Davis versus Monroe County Board of 21 Education, the Supreme Court of United States 22 established a high standard that applies in cases like 23 the plaintiff's case, that if when a student alleges 24 student-on-student sexual harassment and intends to 25 impose liability upon an institution, such as JMU, she (434) 293-3300 Reported by R. Sugrue (800) 972-1993 Case 5:15-cv-00015-EKD-JCH Document 41Wendy Filed 11/06/15 Page 14 ofinfo@cavalier-reporting.com 51 Pageid#: 280 www.cavalier-reporting.com Cavalier Reporting & Videography Butters v James Madison University Pretrial Motions Job # 28170 Page 15 7/28/2015 1 must show, in relevant part, that the institution had 2 actual knowledge of the harassment and was deliberately 3 indifferent. 4 An institution is deliberately indifferent to 5 claims of student-on-student harassment only where the 6 institution's response is, quote, clearly unreasonable 7 in light of the known circumstances. 8 Supreme Court. 9 that an institution must merely respond to the known That's the The Supreme Court has also emphasized 10 harassment in a matter that is not clearly 11 unreasonable. 12 is, that federal courts would, quote, be frankly 13 second-guessing the disciplinary decisions made by 14 school administrators, end quote. 15 They caution, and a very relevant part Now, given this high standard set forth by the 16 Supreme Court, the Supreme Court has declared that in 17 an appropriate case, there is no reason why courts, on 18 a motion to dismiss, could not identify a response as 19 not clearly unreasonable as a matter of law. 20 Your Honor, we have cited several cases in our 21 reply briefs in which trial courts have resolved these 22 Title IX cases on a motion to dismiss, including two of 23 which came out of Eastern District of Virginia in 1999 24 to 2005. 25 Shores versus Stafford County School Board. Those cases are Bracey versus Buchanan and The (434) 293-3300 Reported by R. Sugrue (800) 972-1993 Case 5:15-cv-00015-EKD-JCH Document 41Wendy Filed 11/06/15 Page 15 ofinfo@cavalier-reporting.com 51 Pageid#: 281 www.cavalier-reporting.com Cavalier Reporting & Videography Butters v James Madison University Pretrial Motions Job # 28170 Page 16 7/28/2015 1 plaintiff's case, which allegedly was a -- case for 2 plaintiff, in exquisite detail, is the appropriate case 3 for dismissal. 4 Your Honor, the circumstances show that, from 5 the start, JMU responded with anything but deliberate 6 indifference to the plaintiff or had any kind of 7 intentional apathy or lack of interest to her 8 situation. 9 three males were expelled from their fraternity, which As the alleged circumstances show, the 10 was the plaintiff's social circle, and Young showed 11 interest in preparing Plaintiff and general concern for 12 her well-being. 13 Plaintiff JMU's process for filing a formal complaint, 14 and she detailed what that process would entail. 15 also explained how the process would affect the 16 plaintiff's life. 17 sanctions and she managed the plaintiff's expectations. 18 At the first meeting, she explained to She She answered questions about the The plaintiff does not allege anywhere in the 19 complaint that the process was inaccurate or was 20 misleading. 21 that Ms. Young or anyone else at JMU had dissuaded her 22 from doing that. 23 to a counselor at JMU to deal with the difficulties she 24 was experiencing. 25 Not a single fact supports the allegation Instead, Young referred the plaintiff The plaintiff also suggests indifference that (434) 293-3300 Reported by R. Sugrue (800) 972-1993 Case 5:15-cv-00015-EKD-JCH Document 41Wendy Filed 11/06/15 Page 16 ofinfo@cavalier-reporting.com 51 Pageid#: 282 www.cavalier-reporting.com Cavalier Reporting & Videography Butters v James Madison University Pretrial Motions Job # 28170 Page 17 7/28/2015 1 JMU would not move forward with the claim in April. 2 Young had explained to Plaintiff at the initial 3 meeting, the process to move forward, with fundamental 4 fairness to all students involved, would mean that the 5 accused would have a right to hear and understand the 6 charges against them, examine the evidence and 7 witnesses, and without Plaintiff, the process could not 8 move forward. 9 10 THE COURT: As Let me ask you about that. I note that the complaint does specifically 11 allege, in Paragraph 42, that she asked JMU to handle 12 the matter without her involvement, and she was told 13 they would not do so independently. 14 Could JMU have talked to the three men 15 involved and moved forward if one of them admitted to 16 the conduct? 17 MR. SIMOPOULOS: Your Honor, I think that, 18 based on the presentation that the plaintiff has 19 alleged in the complaint, the plaintiff didn't want 20 anybody to do that. 21 THE COURT: She was fearful of reprisals. Doesn't it allege -- and we're 22 just dealing with allegations at this point -- in 23 Paragraph 42 that she asked JMU to handle the matter 24 without her involvement? 25 MR. SIMOPOULOS: She does allege that she did (434) 293-3300 Reported by R. Sugrue (800) 972-1993 Case 5:15-cv-00015-EKD-JCH Document 41Wendy Filed 11/06/15 Page 17 ofinfo@cavalier-reporting.com 51 Pageid#: 283 www.cavalier-reporting.com Cavalier Reporting & Videography Butters v James Madison University Pretrial Motions Job # 28170 1 Page 18 7/28/2015 ask that, Yes, Your Honor. 2 Your Honor, the reason why JMU couldn't move 3 forward without her involvement was that the video, 4 itself, which is the only evidence they have, provided 5 no information. 6 THE COURT: What if one of the three men 7 admitted to the conduct? 8 MR. SIMOPOULOS: 9 I think that the three men, still, pursuant to the process, would have to have the 10 right to examine Ms. Butters in the proceeding. 11 are serious charges and they have a right to examine 12 the witnesses. 13 These So just the video, itself, does not establish 14 context. 15 to examine Ms. Butters if she brings the video forward. 16 They're entitled to at least have that right So I don't think it's a situation where, if 17 they're shown the video, they admit to it, and then -- 18 they have that right to at least examine the witnesses, 19 per the policy. 20 THE COURT: 21 MR. SIMOPOULOS: 22 A right they can waive? They can waive it. There's no allegation that they did in this case. 23 In fact, the allegations show quite the 24 opposite, that they fully went through hearings, 25 exercised all of their rights. (434) 293-3300 Reported by R. Sugrue (800) 972-1993 Case 5:15-cv-00015-EKD-JCH Document 41Wendy Filed 11/06/15 Page 18 ofinfo@cavalier-reporting.com 51 Pageid#: 284 www.cavalier-reporting.com Cavalier Reporting & Videography Butters v James Madison University Pretrial Motions Job # 28170 1 THE COURT: Page 19 7/28/2015 There are no allegations that they 2 were confronted prior to the formal hearing; is that 3 right? 4 MR. SIMOPOULOS: 5 I think that Your Honor is looking at that That's correct, Your Honor. 6 immediate point in time. 7 think the totality of the circumstances are critical in 8 looking at JMU's response, whether it was deliberate 9 indifference. In this case particularly, I They had a plaintiff in this case who 10 was emotionally distraught and did not want to go 11 through with a formal complaint. 12 So the question is whether they decided, Okay, 13 based on this, we're still going to go forward and 14 investigate this matter. 15 consents to us contacting these individuals, we're 16 moving forward with the investigation. 17 18 THE COURT: Regardless of whether she Isn't the allegation a little different? 19 She didn't say -- it's not alleged that she 20 said, I don't want you to do anything. 21 understand, there may be persons who file informal 22 complaints that don't want to go forward and deal with 23 it. 24 25 I can But that's not the allegation in this complaint; is it? (434) 293-3300 Reported by R. Sugrue (800) 972-1993 Case 5:15-cv-00015-EKD-JCH Document 41Wendy Filed 11/06/15 Page 19 ofinfo@cavalier-reporting.com 51 Pageid#: 285 www.cavalier-reporting.com Cavalier Reporting & Videography Butters v James Madison University Pretrial Motions Job # 28170 1 2 MR. SIMOPOULOS: No. Page 20 7/28/2015 The allegation is she asked them to go forward without her involvement. 3 Again, as I explained to Your Honor earlier, 4 the reason why JMU didn't do that was based on the 5 rights in the policies and the fact the video, itself, 6 to them was inconclusive. 7 8 THE COURT: You mentioned the policies here, and I want to ask you specifically about that. 9 You are not contending -- are you -- that 10 conformance with your internal policy means there can't 11 be a violation? 12 13 MR. SIMOPOULOS: Your Honor. 14 15 No, I'm not contending that, THE COURT: Just like a violation doesn't mean there's a -- 16 MR. SIMOPOULOS: Right. Whether there's a 17 policy or whether there is not a policy doesn't bear -- 18 it bears somewhat, but for purposes of whether the 19 response was clearly unreasonable, you don't need to 20 look at policies. 21 they guided what JMU was doing. 22 But here, the policies are there and JMU thought it was acting reasonably when it 23 looked at the policy and said, These students have 24 rights, and we can afford all students' rights in this 25 case. That's not an unreasonable response under the (434) 293-3300 Reported by R. Sugrue (800) 972-1993 Case 5:15-cv-00015-EKD-JCH Document 41Wendy Filed 11/06/15 Page 20 ofinfo@cavalier-reporting.com 51 Pageid#: 286 www.cavalier-reporting.com Cavalier Reporting & Videography Butters v James Madison University Pretrial Motions Job # 28170 1 Page 21 7/28/2015 circumstances alleged. 2 But the picture that Plaintiff paints is that 3 JMU wiped its hands clean. 4 It's not alleged in the complaint. 5 the facts support that they did that. 6 attentive. 7 the plaintiff. She was patient. That's just not the case. And I don't think Young was She was professional with 8 The plaintiff has not alleged, as I mentioned 9 before, facts to show that Young or anyone else at JMU 10 knew about any continued dissemination afterwards, 11 after that initial meeting, with respect to the video, 12 itself. 13 And also as I mentioned before, given the fact 14 that she later used the very process that was initially 15 suggested to her, the complaint does not allege facts 16 to show that she -- facts that plausibly support the 17 conclusion that anybody discouraged her from trying. 18 I think that's what she alleged in the 19 complaint, that she was dissuaded and discouraged, but 20 by explaining the policy, they were just explaining the 21 policy. 22 the full explanation of the policy, Young reached out 23 to Plaintiff again and said, Are you all right, have 24 you made any decisions about what you want to do? 25 That's all they were doing. In fact, after This e-mail clearly shows that she did not (434) 293-3300 Reported by R. Sugrue (800) 972-1993 Case 5:15-cv-00015-EKD-JCH Document 41Wendy Filed 11/06/15 Page 21 ofinfo@cavalier-reporting.com 51 Pageid#: 287 www.cavalier-reporting.com Cavalier Reporting & Videography Butters v James Madison University Pretrial Motions Job # 28170 Page 22 7/28/2015 1 ignore the plaintiff, and clearly shows that there was 2 not deliberate indifference. 3 ignore the plaintiff's father when he also wrote 4 several months later. 5 And again, JMU did not Now, the plaintiff's decision not to pursue 6 the remedies that were made available to her in April 7 of 2013 precludes the establishment of deliberate 8 indifference. 9 Your Honor, I cited the case of Chetner versus 10 University of South Carolina where a district court 11 held an administrative inquiry as to whether the 12 complainant or her father wanted to file a formal 13 complaint of sexual harassment, and the complainant 14 choosing not to do so precluded a finding of deliberate 15 indifference. 16 In that case, the district court stated: Even 17 if the plaintiff and her father gave some notice of a 18 sexual, hostile environment during the event, she did 19 not establish a deliberate indifference after that date 20 because it was undisputed that those processes -- 21 THE COURT: Well, are you contending that the 22 allegations that Plaintiff -- the allegations Plaintiff 23 made initially were vague? 24 25 MR. SIMOPOULOS: I'll say that the video was not conclusive. (434) 293-3300 Reported by R. Sugrue (800) 972-1993 Case 5:15-cv-00015-EKD-JCH Document 41Wendy Filed 11/06/15 Page 22 ofinfo@cavalier-reporting.com 51 Pageid#: 288 www.cavalier-reporting.com Cavalier Reporting & Videography Butters v James Madison University Pretrial Motions Job # 28170 1 2 3 THE COURT: Page 23 7/28/2015 Not just the video, but the allegations. In the meeting that she had in April with 4 Ms. Young, are you contending that those allegations 5 were vague? 6 MR. SIMOPOULOS: 7 answer to that question. 8 Your Honor, I don't know the I do know that the plaintiff has alleged that 9 she had no memory of the events that occurred. 10 that JMU had at the time, according to her own 11 allegations, was the video. 12 So all So based upon what she alleged, that she had 13 no recollection of the event and that she gave this 14 video to them, looking at that together, the fact is 15 they gave her the policies -- in that case, the 16 University of South Carolina was held not to show 17 deliberate indifference by providing a policy to pursue 18 ramifications. 19 I think the allegations in that case were -- I 20 don't know how vague -- I don't think they were vague 21 in that case. 22 explicit the allegations were in the actual meetings. 23 They're not alleged in the complaint. 24 25 But I don't know how vague or how So I think that ultimately in this case, under the circumstances, the plaintiff did exactly what (434) 293-3300 Reported by R. Sugrue (800) 972-1993 Case 5:15-cv-00015-EKD-JCH Document 41Wendy Filed 11/06/15 Page 23 ofinfo@cavalier-reporting.com 51 Pageid#: 289 www.cavalier-reporting.com Cavalier Reporting & Videography Butters v James Madison University Pretrial Motions Job # 28170 Page 24 7/28/2015 1 Ms. Young had told her she could do back in 2013; she 2 decided to stop trying to handle the matter on her own, 3 and filed a complaint. 4 JMU handled that complaint, as the 5 allegations, themselves, show. 6 hearing process moved swiftly, that within twelve weeks 7 of filing, JMU investigated the complaint, held nine 8 adjudicatory hearings including six appeals of right, 9 three of which, the plaintiff had noticed, herself, and 10 had evoked thoughtful punishments on these individuals. 11 These punishments were immediate and they were 12 permanent and they were thoughtful. 13 JMU's investigation and The Supreme Court in Davis has expressly 14 instructed that courts should refrain from 15 second-guessing the disciplinary decisions made by 16 school administrators. 17 to a particular remedy, only expulsion. 18 deliberate indifference is whether the mere response, 19 not including the punishment of expulsion, is clearly 20 unreasonable. 21 Importantly, it is not entitled The issue of That's the standard here. As the Supreme Court continues, such responses 22 by JMU was not clearly unreasonable. 23 expulsion of every student accused of misconduct would 24 protect school systems from liability damages. 25 Nothing short of The fact that JMU did not immediately expel (434) 293-3300 Reported by R. Sugrue (800) 972-1993 Case 5:15-cv-00015-EKD-JCH Document 41Wendy Filed 11/06/15 Page 24 ofinfo@cavalier-reporting.com 51 Pageid#: 290 www.cavalier-reporting.com Cavalier Reporting & Videography Butters v James Madison University Pretrial Motions Job # 28170 Page 25 7/28/2015 1 the students and impose other punishments does not 2 plausibly support deliberate indifference. 3 I think that the totality of the circumstances 4 is what the Court should consider when looking at the 5 complaint because this is a total circumstance that, in 6 the end, the process was what occurred and punishments 7 were imposed. That does not show deliberate 8 indifference. That does not show a lack of concern. 9 It does not show a lack or interest or apathy for this 10 plaintiff. 11 It was not clearly unreasonable. This is not a case where JMU failed to do 12 anything, like a lot of cases. 13 where JMU failed to follow its own policies and 14 procedures. 15 and procedures are irrelevant or how material they are 16 to the argument, the fact is, JMU followed their own 17 policies and procedures. 18 they were sensitive to Ms. Butter's needs, was 19 sensitive to her decisions. 20 This is not even a case I know Your Honor -- whether the policies In the end, this is a case Your Honor, I think that the plaintiff may 21 seek to have this Court open its doors to a lot of 22 things in which the students challenge the ultimate 23 decisions imposed by universities. 24 instructs the Court that that's -- you shouldn't do 25 that. I think that Davis That would open the doors to the courts becoming (434) 293-3300 Reported by R. Sugrue (800) 972-1993 Case 5:15-cv-00015-EKD-JCH Document 41Wendy Filed 11/06/15 Page 25 ofinfo@cavalier-reporting.com 51 Pageid#: 291 www.cavalier-reporting.com Cavalier Reporting & Videography Job # 28170 Butters v James Madison University Pretrial Motions Page 26 7/28/2015 1 university administrators. 2 to what universities do at the administrative level. 3 So a lot of effort is given I would ask this Court to dismiss the 4 complaint for those reasons. 5 THE COURT: 6 Mr. Allen? 7 MR. ALLEN: 8 As you know, I'm Coleman Allen. 9 Thank you. Thank you, Your Honor. It's my pleasure to be with co-counsel, Chris Toepp, here on 10 behalf of the plaintiff, Sarah Butters, who is seated 11 behind me to my right, and her father, Bill Butters. 12 Judge, it cannot be emphasized strongly enough 13 the unique features that this case presents factually. 14 We viewed what occurred to Sarah Butters as being a 15 crime in three parts, Judge. 16 The first is the sexual assault, itself, that 17 occurred in Panama City on March 3, 2013. 18 the videotaping of the encounter of the assault, 19 itself, in the bathroom. 20 that video on the JMU campus after the students return. 21 Second is Third is the dissemination of Judge, we believe that the Court's focus on 22 the April 12, 2013 meeting between Sara Butters and 23 Wendy Young of JMU is quite apt. 24 Ms. Butters' primary concern was to put a stop to the 25 dissemination of this video that was ongoing. In that meeting, This (434) 293-3300 Reported by R. Sugrue (800) 972-1993 Case 5:15-cv-00015-EKD-JCH Document 41Wendy Filed 11/06/15 Page 26 ofinfo@cavalier-reporting.com 51 Pageid#: 292 www.cavalier-reporting.com Cavalier Reporting & Videography Butters v James Madison University Pretrial Motions Job # 28170 Page 27 7/28/2015 1 meeting is taking place at a time five-and-a-half weeks 2 following the incident, itself. 3 Wendy Young didn't do anything to stop the 4 dissemination of the video, as has been pled. 5 was no effort to contact or communicate with the three 6 young men and instruct them not to continue 7 disseminating it. 8 There Throughout the entire administrative and 9 disciplinary period, none of the three young men ever 10 denied what they had done, as, indeed, they couldn't, 11 because there was the video depicting the assault. 12 video, itself, proved that it had been made. 13 dissemination on the campus was a fact, as well. 14 The And the From the date of that hearing, April 12, 2013, 15 until JMU finally concluded its process a full year 16 later, in April of 2014, there was nothing that was 17 discovered or learned over the course of that year that 18 was not reported and known at the time of that meeting 19 on April 12, 2013, only because it's mentioned in the 20 reply brief by the defense with regard to the plaintiff 21 supposedly urging some different standard on the Court 22 with regard to the analysis of this issue. 23 I would stress that the five-part test 24 outlined by the US Supreme Court in Davis, those five 25 items are cited. And the case is cited in the very (434) 293-3300 Reported by R. Sugrue (800) 972-1993 Case 5:15-cv-00015-EKD-JCH Document 41Wendy Filed 11/06/15 Page 27 ofinfo@cavalier-reporting.com 51 Pageid#: 293 www.cavalier-reporting.com Cavalier Reporting & Videography Butters v James Madison University Pretrial Motions Job # 28170 1 first paragraph of the plaintiff's brief. 2 And clearly what is required, the plaintiff be 3 a student at an educational institution receiving 4 federal funds; no question there. 5 6 Page 28 7/28/2015 Plaintiff is subject to harassment based on her sex; also clearly and thoroughly pled. 7 Harassment is sufficiently severe or pervasive 8 enough to create a hostile environment that effectively 9 denied Plaintiff access to educational opportunities 10 normally afforded by the school to other students; it's 11 well and clearly pled what her experience was with 12 regard to the harassment that took place and the fact 13 that she was ultimately compelled to leave the 14 university, the fear she had by the fact that the young 15 men were allowed to remain on campus. 16 Appropriate person had actual knowledge of the 17 harassment; that begins with Wendy Young on April 12th 18 of 2013. 19 20 And that the response was unreasonable to such a degree as to demonstrate deliberate indifference -- 21 THE COURT: 22 Are you contending that this Court should Mr. Allen, let me stop you here. 23 serve as appellate review for university discipline 24 decisions? 25 MR. ALLEN: Absolutely not, Judge. (434) 293-3300 Reported by R. Sugrue (800) 972-1993 Case 5:15-cv-00015-EKD-JCH Document 41Wendy Filed 11/06/15 Page 28 ofinfo@cavalier-reporting.com 51 Pageid#: 294 www.cavalier-reporting.com Cavalier Reporting & Videography Butters v James Madison University Pretrial Motions Job # 28170 1 Page 29 7/28/2015 We're certainly not talking about a negligence 2 standard. 3 substitute its view of what might be an appropriate 4 administrative handling in place of what JMU did. 5 We're certainly not asking the Court to What occurred here rises to a level far beyond 6 that. 7 administrative proposals rewritten, but rather focus on 8 what actually happened here over the course of the 9 year, how the complaint was dealt with, and the fact 10 that the penalty ultimately determined, of expulsion 11 following graduation, is an extraordinary decision to 12 make in light of the nature of what I've referred to as 13 the crime in three parts. 14 15 In fact, we're not seeking to have THE COURT: Is it your position that the discipline, itself, was clearly unreasonable? 16 MR. ALLEN: Yes. 17 THE COURT: What other aspects do you contend 18 19 were clearly unreasonable? MR. ALLEN: Judge, there are a number of 20 individual aspects that are clearly unreasonable, which 21 are outlined in the complaint and that I will refer to. 22 But I think it's important to stress, we are 23 referring to the totality of the conduct by JMU in 24 relation to the incident, not pointing to one specific 25 fact and saying that, by itself, makes out the Title IX (434) 293-3300 Reported by R. Sugrue (800) 972-1993 Case 5:15-cv-00015-EKD-JCH Document 41Wendy Filed 11/06/15 Page 29 ofinfo@cavalier-reporting.com 51 Pageid#: 295 www.cavalier-reporting.com Cavalier Reporting & Videography Butters v James Madison University Pretrial Motions Job # 28170 Page 30 7/28/2015 1 claim, but instead the focus is on the totality of the 2 conduct. 3 We've already talked about Wendy Young's 4 inaction with reference to April 12, 2013. 5 Counsel -- Defense 6 THE COURT: 7 Is it your position that it's clearly Let me interrupt you here. 8 unreasonable for a university to require a formal 9 complaint? 10 MR. ALLEN: Again, Judge, in and of itself, I 11 don't know that -- I'm not saying that that one thing 12 all by itself meets the standard. 13 I think it is clear that a university does 14 have an obligation to act in the absence of a student 15 making a formal complaint -- that's clear in the case 16 law -- and that the student is not required to comply 17 with what this university has outlined by way of 18 procedures. 19 20 21 THE COURT: What case law are you referring to with regard to that formal complaint process? MR. ALLEN: Referring there, Judge, to Herndon 22 versus College of Mainland, cited also in Crandell 23 versus New York College of Osteopathic Medicine, on 24 Page 6 of our brief, the specific quote is: 25 employee need not follow the institution's official Student or (434) 293-3300 Reported by R. Sugrue (800) 972-1993 Case 5:15-cv-00015-EKD-JCH Document 41Wendy Filed 11/06/15 Page 30 ofinfo@cavalier-reporting.com 51 Pageid#: 296 www.cavalier-reporting.com Cavalier Reporting & Videography Butters v James Madison University Pretrial Motions Job # 28170 Page 31 7/28/2015 1 route for reporting sexual harassment. 2 report to someone with authority to take corrective 3 measures. She must merely 4 THE COURT: Thank you. 5 MR. ALLEN: I should note also that we do not 6 feel that JMU's attachment of exhibits in this case is 7 appropriate to a Rule 12(b)(6) motion. 8 When we look at the case law that talks about 9 attaching exhibits at this stage, it refers to such 10 things as where there's a contract at issue and the 11 plaintiff has either mischaracterized the contract or 12 quoted something out of context that only becomes 13 apparent when seeing the full contract. 14 That's not the case here at all, Judge. 15 That's evidence that would be part of the discovery 16 process or perhaps part of a motion for summary 17 judgment, but is not appropriate to a 12(b)(6) motion. 18 Including, as we've already noted -- and 19 frankly, Judge, we emphasize that on the brief in 20 anticipation of the motion for summary judgement, 21 rather than thinking it was relevant to here, the fact 22 that she was not required to follow JMU's procedure. 23 24 25 THE COURT: Are you challenging the authenticity of the documents? MR. ALLEN: I am not, Your Honor. (434) 293-3300 Reported by R. Sugrue (800) 972-1993 Case 5:15-cv-00015-EKD-JCH Document 41Wendy Filed 11/06/15 Page 31 ofinfo@cavalier-reporting.com 51 Pageid#: 297 www.cavalier-reporting.com Cavalier Reporting & Videography Butters v James Madison University Pretrial Motions Job # 28170 1 THE COURT: You may proceed. 2 MR. ALLEN: Judge, I was surprised to hear Page 32 7/28/2015 3 Defense Counsel refer to the fraternity having expelled 4 the three young men as part of indicating an 5 appropriate handling. 6 I would suggest that the fraternity's handling 7 in no way works in JMU's favor, but to the contrary. 8 It provides a stark contrast with the university's 9 handling from the standpoint of raising the question of 10 what is it that the young men in charge of the 11 fraternity were able to recognize and act on in a 12 prompt and appropriate way that was, for whatever 13 reason, not apparent to those in the JMU administration 14 charged with those responsibilities. 15 Judge, I'm also surprised that there should be 16 an attack on the video. 17 context provided in the allegations that are part of 18 the complaint, and that does provide the context for 19 the video. 20 The video is explained and We know also, and anticipate that in the 21 course of discovery, a clearer copy of the video will 22 be possible to be obtained. 23 that had Wendy Young, on April 12th or in response to 24 April 12, 2013, called the young men in, a clear and 25 clean copy of the video could have been able to be And it's quite obvious (434) 293-3300 Reported by R. Sugrue (800) 972-1993 Case 5:15-cv-00015-EKD-JCH Document 41Wendy Filed 11/06/15 Page 32 ofinfo@cavalier-reporting.com 51 Pageid#: 298 www.cavalier-reporting.com Cavalier Reporting & Videography Job # 28170 1 Butters v James Madison University Pretrial Motions Page 33 7/28/2015 obtained from them at that time. 2 I think it's important to note also, Judge, 3 that from April 12, 2013 forward, there's no 4 indication, and the complaint is clear in saying, that 5 at no time did these three young men deny what they had 6 done. 7 What is unique about this case, in addition to 8 the fact of this crime in three parts, where what's 9 being not handled appropriately to the extent of giving 10 rise to support a Title IX claim is not just the sexual 11 assault, but the fact that it was videotaped and the 12 fact that the videotape was disseminated. 13 It takes this case outside the category of so 14 many of them, the vast majority, Judge, where there is 15 a he-said/she-said aspect to it, and that the need to 16 hear from both sides being greater than in a scenario 17 where the crime has, in fact, been videotaped, and the 18 videotaping of it is a part of the crime, itself, 19 including the dissemination. 20 this. 21 That was never a part of We think it's clear, Judge, that -- Defense 22 Counsel referred at one point to a twenty-page 23 complaint in, quote, exquisite detail, end quote that 24 provides common ground. 25 complaint provides exquisite detail. We do believe that the We view it as a (434) 293-3300 Reported by R. Sugrue (800) 972-1993 Case 5:15-cv-00015-EKD-JCH Document 41Wendy Filed 11/06/15 Page 33 ofinfo@cavalier-reporting.com 51 Pageid#: 299 www.cavalier-reporting.com Cavalier Reporting & Videography Butters v James Madison University Pretrial Motions Job # 28170 Page 34 7/28/2015 1 textbook complaint in a Title IX action, and believe 2 that the complaint clearly, thoroughly, and completely 3 addresses each of the five elements laid out by the 4 Supreme Court in Davis. 5 In sum, Judge, we know that at this stage of 6 the case, it goes forward even if -- and this case is 7 cited in our brief -- the probability of success may 8 appear, quote, very remote and unlikely, end quote. 9 When we look at the pled complaint as a whole, 10 and all the different elements, and what took place 11 over the course of a year, what was done and what was 12 not done by JMU, including the ultimate decision of a 13 penalty -- which is very much a part of the total 14 pattern and a logical conclusion, in our mind, to the 15 way the case was handled by JMU -- the fact that that 16 would be viewed as a non-penalty as trivializing sexual 17 assault, itself, and trivializing what Sarah Butters 18 went through from the standpoint that it would draw a 19 mocking response from around the country is -- from 20 such things as the Daily Show and Jon Stewart making it 21 part of that program. 22 It typifies, Judge, what we think is the 23 totality of how this was handled by JMU from the 24 beginning. 25 clearly this complaint makes out a case under Title IX And for purposes of a Rule 12(b)(6) motion, (434) 293-3300 Reported by R. Sugrue (800) 972-1993 Case 5:15-cv-00015-EKD-JCH Document 41Wendy Filed 11/06/15 Page 34 ofinfo@cavalier-reporting.com 51 Pageid#: 300 www.cavalier-reporting.com Cavalier Reporting & Videography Butters v James Madison University Pretrial Motions Job # 28170 Page 35 7/28/2015 1 that the Court should allow to go forward at this 2 point. 3 4 And for those reasons, we urge the Court to deny the motion by JMU. 5 THE COURT: 6 I have just a few questions. 7 You note that the video and the dissemination Thank you. 8 of the video make this a unique case. 9 allege in the complaint that when your client went for But you also 10 her first meeting to tell the administration about this 11 matter, that she reported that it had been widely 12 disseminated. 13 MR. ALLEN: Correct. 14 THE COURT: So given that report of wide 15 dissemination, do you expect that the university can 16 somehow, after wide dissemination, close the box? 17 MR. ALLEN: Judge, there is nothing the 18 university could have done on April 12th, as of 19 April 12th to prevent the dissemination that had 20 already occurred, but a key component is that this was 21 very much an ongoing process. 22 dissemination is that it is geometric in nature in 23 terms of its expansion. 24 25 And the nature of So it was very much, as we have alleged, a part of Sarah Butters' meeting with Wendy Young to stop (434) 293-3300 Reported by R. Sugrue (800) 972-1993 Case 5:15-cv-00015-EKD-JCH Document 41Wendy Filed 11/06/15 Page 35 ofinfo@cavalier-reporting.com 51 Pageid#: 301 www.cavalier-reporting.com Cavalier Reporting & Videography Job # 28170 1 2 Butters v James Madison University Pretrial Motions Page 36 7/28/2015 the continuing and ongoing dissemination of the video. THE COURT: But if she reports it's already 3 been widely disseminated, is talking to these three men 4 going to stop further dissemination? 5 MR. ALLEN: I don't know that the university 6 was limited to talking only to the three men and could 7 have gotten out a university-wide statement. 8 a number of things that could have been done to prevent 9 the dissemination from that point forward. 10 There are But there is no question that that is what 11 occurred, and that JMU didn't make any effort to stop 12 an ongoing process. 13 dissemination that was complete as of April 12th, and 14 that was not the force of her complaint. 15 It's not a process of widespread One of the key components and reasons she went 16 to meet with Wendy Young was to prevent its 17 dissemination from that point forward. 18 THE COURT: Suppose they sent an e-mail to all 19 students, There's a video out there, don't disseminate 20 it further, doesn't that call attention to it and have 21 people then looking for that video? 22 MR. ALLEN: That's possible, Judge. I think 23 that goes to an evidentiary point about what could have 24 been done and what may have been the effect of it, 25 outside the bounds of a Rule 12(b)(6) motion. But (434) 293-3300 Reported by R. Sugrue (800) 972-1993 Case 5:15-cv-00015-EKD-JCH Document 41Wendy Filed 11/06/15 Page 36 ofinfo@cavalier-reporting.com 51 Pageid#: 302 www.cavalier-reporting.com Cavalier Reporting & Videography Job # 28170 Butters v James Madison University Pretrial Motions Page 37 7/28/2015 1 again, Judge, I think there's a variety of things they 2 could have done in an effort to prevent it from being 3 disseminated further. 4 The fact that the three young men, who were 5 responsible for the incident, were never talked to or 6 instructed or told that the dissemination should stop 7 immediately or that it was a violation of anything at 8 JMU, is important. 9 THE COURT: One other question I have for you. 10 In your complaint, you talk about your client 11 being discouraged from filing a formal complaint based 12 on the information that she was provided about the 13 procedure that would be required. 14 Are you -- but you don't allege in the 15 complaint that the information she was provided was 16 false or misleading in any way. 17 18 19 I mean, is it your contention that that information is false or misleading? MR. ALLEN: Judge, I think it goes beyond 20 whether a specific statement that, if you make a formal 21 complaint, there will be an administrative hearing, a 22 factually-correct statement. 23 It goes beyond that from the standpoint of how 24 that is explained and how it is characterized, and what 25 is the nature of that meeting and the conversation that (434) 293-3300 Reported by R. Sugrue (800) 972-1993 Case 5:15-cv-00015-EKD-JCH Document 41Wendy Filed 11/06/15 Page 37 ofinfo@cavalier-reporting.com 51 Pageid#: 303 www.cavalier-reporting.com Cavalier Reporting & Videography Butters v James Madison University Pretrial Motions Job # 28170 1 our client had with Wendy Young, to start with the 2 April 12th, because that occurred on subsequent 3 meetings, as outlined in the complaint also. 4 Page 38 7/28/2015 There was no question in her mind at the time. 5 And we believe, when the evidence is introduced in its 6 totality with regard to those meetings, it will be 7 clear, as alleged in the complaint, that the manner in 8 which information was communicated and what she was 9 told had the effect of discouraging her, and we believe 10 was intended to have that effect. 11 When you ask the question of whether a 12 specific statement was made that was a lie, Judge, we 13 believe that the information that was provided was 14 incomplete in terms of the totality of what could be 15 expected. 16 And what she was told in that meeting and 17 subsequent meetings was selective from the point of 18 view of having the clear effect of discouraging her, 19 and that being the intent. 20 THE COURT: 21 You can continue. 22 Do you have anything else to add? 23 MR. ALLEN: 24 Simply in closing, we would note that, again, 25 All right. No, Judge. we feel that a textbook case has been made out for (434) 293-3300 Reported by R. Sugrue (800) 972-1993 Case 5:15-cv-00015-EKD-JCH Document 41Wendy Filed 11/06/15 Page 38 ofinfo@cavalier-reporting.com 51 Pageid#: 304 www.cavalier-reporting.com Cavalier Reporting & Videography Butters v James Madison University Pretrial Motions Job # 28170 Page 39 7/28/2015 1 Title IX. 2 every juncture, they did everything absolutely correct 3 and are defending it from start to finish. 4 The position of JMU clearly is that, at Judge, that's at the core of why we think this 5 is a case that needs to be heard by a jury. 6 believe that the twenty-page complaint, in exquisite 7 detail, does include the facts that clearly meet the 8 standards for purposes of 12(b)(6) motion. 9 Thank you, Your Honor. 10 (Discussion off the record.) 11 THE COURT: 12 13 14 15 And we Mr. Simopoulos, the court reporter is requesting that you speak up and clearly. MR. SIMOPOULOS: Yes, Your Honor. I apologize. Your Honor, Coleman talked -- Opposing Counsel 16 talked a lot about looking at the picture as a whole, 17 looking at the totality of the circumstances. 18 think that's where we actually agree in this case. And I 19 The Supreme Court has said, when you look at 20 the totality of the known circumstances, a university 21 must merely respond known peer harassment in a manner 22 that is not clearly unreasonable. 23 Let's look at the circumstances. When 24 Ms. Young met the plaintiff in April, these men had 25 been expelled from their fraternity. At that time, (434) 293-3300 Reported by R. Sugrue (800) 972-1993 Case 5:15-cv-00015-EKD-JCH Document 41Wendy Filed 11/06/15 Page 39 ofinfo@cavalier-reporting.com 51 Pageid#: 305 www.cavalier-reporting.com Cavalier Reporting & Videography Butters v James Madison University Pretrial Motions Job # 28170 Page 40 7/28/2015 1 Ms. Young gave the plaintiff the policies of how to 2 file a complaint. 3 explained what the possible sanctions were, and 4 explained how the process could affect or impact her 5 life. 6 She explained those policies, and She sent and referred the plaintiff to a 7 counselor to help her with her emotional difficulties. 8 She checked in on the plaintiff again weeks later, with 9 an e-mail asking her, Are you doing okay, have you made 10 11 any decisions about what you want to do? Finally, when she decided -- and we also 12 responded to her parents' inquiry. 13 do something, when she was ready to do something, we 14 moved swiftly and we imposed a punishment. 15 Once she decided to Your Honor, this is not a negligence standard 16 when looking at the totality of the circumstances. 17 Negligence has no play in Title IX. 18 clearly-unreasonable standard. 19 Title IX is a If you look at all these circumstances 20 collectively and the fact that, as Your Honor pointed 21 out, once the cat's out, the cat's out. 22 so much that can be done. 23 university-wide statement would dis-serve the plaintiff 24 under the circumstances. 25 There's only And certainly, a I think if you look at all these circumstances (434) 293-3300 Reported by R. Sugrue (800) 972-1993 Case 5:15-cv-00015-EKD-JCH Document 41Wendy Filed 11/06/15 Page 40 ofinfo@cavalier-reporting.com 51 Pageid#: 306 www.cavalier-reporting.com Cavalier Reporting & Videography Butters v James Madison University Pretrial Motions Job # 28170 Page 41 7/28/2015 1 that are alleged in the complaint -- and we haven't 2 alleged these circumstances -- the totality of these 3 circumstances show a response that was not clearly 4 unreasonable, that was not intentionally or 5 deliberately indifferent to the plaintiff's needs, and 6 certainly wasn't indifferent to the situation. 7 With respect to another point the plaintiff 8 has made about Rule 12(b)(6) motions and documents, 9 I'll just mention in passing that courts routinely 10 consider documents in 12(b)(6) motions. 11 mentioned before, this Court does not need to look at 12 these documents in making a decision here because we 13 think that the detail in this complaint sufficiently 14 shows a reasonable, in fact a more-than reasonable 15 response, sensitive to a person's needs, sensitive to 16 the situation. 17 Again, as I She was sensitive. I think that focusing on one point, which 18 Coleman and I agree you shouldn't do, focusing on the 19 totality, if you look at the totality, this is not a 20 case of something being clearly unreasonable. 21 not that case, Your Honor. This is 22 If this is that case, if we were looking at 23 punishments that the university imposed, we would be 24 second-guessing how they make decisions and why they 25 make decisions, why they didn't send out a (434) 293-3300 Reported by R. Sugrue (800) 972-1993 Case 5:15-cv-00015-EKD-JCH Document 41Wendy Filed 11/06/15 Page 41 ofinfo@cavalier-reporting.com 51 Pageid#: 307 www.cavalier-reporting.com Cavalier Reporting & Videography Butters v James Madison University Pretrial Motions Job # 28170 Page 42 7/28/2015 1 university-wide e-mail, and why they didn't talk to 2 these individuals, what decisions they had to make. 3 have to give them some deference because they have to 4 do this every day. 5 Davis has made clear. 6 7 That's what the Supreme Court in So I would ask Your Honor to grant our motion to dismiss. 8 9 We Another thing about the dissemination, the wide dissemination, about the cat being out of the box, 10 is that nothing is mentioned in the complaint, after 11 that meeting, about who it was disseminating this any 12 further. 13 to JMU's attention about the future, ongoing, wide 14 dissemination. Nothing was told to JMU, nothing was brought 15 I'm sure, if there's anything that JMU could 16 have done about something like that, if the plaintiff 17 wanted us to do something, we would have done it with 18 the plaintiff's involvement. 19 20 21 22 So I think in the end, this is not a case of clearly unreasonable standards. So I would ask Your Honor to grant our motion to dismiss. Thank you. 23 THE COURT: 24 I'd like to thank Counsel for your briefs and 25 arguments. Thank you. I'd like to thank you for your (434) 293-3300 Reported by R. Sugrue (800) 972-1993 Case 5:15-cv-00015-EKD-JCH Document 41Wendy Filed 11/06/15 Page 42 ofinfo@cavalier-reporting.com 51 Pageid#: 308 www.cavalier-reporting.com Cavalier Reporting & Videography Job # 28170 1 2 Butters v James Madison University Pretrial Motions Page 43 7/28/2015 professionalism, also. I will consider your arguments and an order 3 opinion will be forthcoming. 4 Thank you. Ask the Marshall to adjourn Court? 5 6 7 (Hearing adjourned at 2:46 p.m.) * * * * * 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 (434) 293-3300 Reported by R. Sugrue (800) 972-1993 Case 5:15-cv-00015-EKD-JCH Document 41Wendy Filed 11/06/15 Page 43 ofinfo@cavalier-reporting.com 51 Pageid#: 309 www.cavalier-reporting.com Cavalier Reporting & Videography Butters v James Madison University Pretrial Motions Job # 28170 Page 44 7/28/2015 1 COMMONWEALTH OF VIRGINIA AT LARGE, to wit: 2 I, Wendy R. Sugrue, Notary Public in and for 3 the Commonwealth of Virginia at large, whose commission 4 expires October 31, 2019, do certify that I was the 5 court reporter at the aforementioned proceedings, and 6 that the foregoing is a true, correct, and full 7 transcript of the proceedings herein. 8 I further certify that I am neither related to 9 nor otherwise associated with any counsel or party to 10 the proceeding, nor otherwise interested in the event 11 thereof. 12 Given under my hand and notarial seal at 13 Charlottesville, Virginia this 31st day of October, 14 2015. 15 16 17 18 19 ____________________________________ 20 Wendy Sugrue, Notary Public 21 Commonwealth of Virginia at Large 22 Notary Public Registration No. 7339814 23 24 Job No. 28170 25 (434) 293-3300 Reported by R. Sugrue (800) 972-1993 Case 5:15-cv-00015-EKD-JCH Document 41Wendy Filed 11/06/15 Page 44 ofinfo@cavalier-reporting.com 51 Pageid#: 310 www.cavalier-reporting.com Cavalier Reporting & Videography Butters v James Madison University Pretrial Motions Job # 28170 WORD INDEX <1> 1:55 1:14 2:4 3:1 10 12:20 12 5:2 9:4 26:22 27:14, 19 30:4 31:7, 17 32:24 33:3 34:24 36:25 39:8 41:8, 10 12th 28:17 32:23 35:18, 19 36:13 38:2 13 13:5 1681 14:17 1999 14:20 15:23 <2> 2:46 1:14 43:6 20 14:17 2005 15:24 2013 4:11, 16 5:13 6:20 9:4 12:12, 17 22:7 24:1 26:17, 22 27:14, 19 28:18 30:4 32:24 33:3 2014 12:20 13:5 27:16 2015 1:15 2:4 4:5 44:14 2015: 3:1 2019 44:4 22407 2:11 23219 2:20 28 1:15 2:4 3:1 28170 1:24 44:24 <3> 3 4:5 6:20 26:17 31 44:4 31st 44:13 3504 2:10 3rd 6:24 <4> 4 12:12 42 17:11, 23 47 11:14 <9> 900 2:19 administration 32:13 35:10 administrative 22:11 26:2 27:8 29:4, 7 37:21 administrators 15:14 24:16 26:1 admit 18:17 admits 11:21 admitted 17:15 18:7 Admittedly 11:23 advised 3:10 advisor 8:24 Affairs 9:6, 9 13:22 affect 7:19 16:15 40:4 affiliation 11:7 afford 20:24 afforded 28:10 able 7:13 32:11, 25 absence 30:14 Absolutely 28:25 39:2 academics 13:17 accepted 11:2 access 28:9 accurate 9:25 accused 10:17 14:14 17:5 24:23 accuser 14:15 acknowledged 12:21 act 30:14 32:11 acting 20:22 Action 3:6 14:2 34:1 activity 8:9 14:18 actual 15:2 23:22 28:16 add 38:22 addition 33:7 address 7:13, 20, 21 addresses 34:3 adjourn 43:4 adjourned 43:6 adjudicatory 13:1 24:8 aforementioned 44:5 afternoon 3:3, 22 agree 39:18 41:18 ahead 11:20 alcohol 6:25 allegation 11:18 16:20 18:22 19:17, 24 20:1 allegations 3:12 5:4, 6, 19, 21 6:7 17:22 18:23 19:1 22:22, 22 23:2, 4, 11, 19, 22 24:5 32:17 allege 8:17 11:10, 13, 17 12:3, 8 16:18 17:11, 21, 25 21:15 35:9 37:14 alleged 4:8, 24 8:20 11:5 12:5 16:8 17:19 19:19 21:1, 4, 8, 18 23:8, 12, 23 35:24 38:7 41:1, 2 allegedly 12:20, 24 16:1 <5> 5:15-cv-00015EKD-JGW 1:7 5:15-cv-15 3:6 540.736.0339 2:12 <6> 6 5:2 30:24 31:7, 17 34:24 36:25 39:8 41:8, 10 <7> 7339814 44:22 <8> 804.786.1192 2:21 alleges 4:14 7:3 11:3 14:23 alleging 4:5 ALLEN 2:9, 9, 9, 9, 13 26:6, 7, 8 28:21, 25 29:16, 19 30:10, 21 31:5, 25 32:2 35:13, 17 36:5, 22 37:19 38:23 allow 35:1 allowed 28:15 analysis 27:22 angles 8:5 answer 6:2 23:7 answered 16:16 anticipate 32:20 anticipation 31:20 anybody 17:20 21:17 apartment 7:2, 5 apathy 16:7 25:9 apologize 39:14 apparent 31:13 32:13 appeals 13:1 24:8 appear 34:8 appearance 3:14 APPEARANC ES 2:8 appellate 28:23 applies 14:22 appropriate 7:17 15:17 16:2 28:16 29:3 31:7, 17 32:5, 12 appropriately 4:21 33:9 April 9:4 12:17 13:5 17:1 22:6 23:3 26:22 27:14, 16, 19 28:17 30:4 32:23, 24 33:3 35:18, Page 1 7/28/2015 19 36:13 38:2 39:24 apt 26:23 argument 3:19 7:19, 21 25:16 arguments 42:25 43:2 asked 10:4, 9 11:25 17:11, 23 20:2 asking 29:2 40:9 aspect 33:15 aspects 29:17, 20 assault 4:10 9:18 13:23 26:16, 18 27:11 33:11 34:17 assaulting 7:9 assistance 14:19 associated 44:9 assume 5:3 attached 5:8 6:6 7:12 9:22 attaching 31:9 attachment 31:6 attack 32:16 attention 4:11 36:20 42:13 attentive 21:6 ATTORNEY 2:18 3:24 authenticity 31:24 authority 31:2 available 22:6 aware 11:8 14:16 back 4:11 7:2 12:8 24:1 barred 13:9, 12, 13, 16, 19 based 17:18 19:13 20:4 23:12 28:5 37:11 basis 4:7 bathroom 7:10 8:1, 3, 9 26:19 beach 6:24 bear 20:17 bears 20:18 becoming 25:25 beginning 13:15, 17, 20 34:24 begins 7:24 28:17 behalf 3:24 26:10 believe 26:21 33:24 34:1 38:5, 9, 13 39:6 beyond 29:5 37:19, 23 Bill 26:11 Board 14:20 15:25 bounds 36:25 box 35:16 42:9 Bracey 15:24 break 4:14 6:22 7:6 8:11 brief 6:18 27:20 28:1 30:24 31:19 34:7 briefs 15:21 42:24 brings 18:15 brought 4:11 42:12 Buchanan 15:24 BUTTERS 1:5 3:5, 12 13:2 18:10, 15 26:10, 11, 14, 22, 24 34:17 35:25 Butter's 25:18 call 3:4 36:20 called 32:24 campus 13:9, 16 26:20 27:13 28:15 Carolina 22:10 23:16 Case 1:7 3:4, 16 4:3 5:1, 12, 17 6:16 14:23 15:17 16:1, 1, 2 18:22 19:6, 9 20:25 21:3 22:9, 16 23:15, 19, 21, 24 25:11, 12, (434) 293-3300 Reported by R. Sugrue (800) 972-1993 Case 5:15-cv-00015-EKD-JCH Document 41Wendy Filed 11/06/15 Page 45 ofinfo@cavalier-reporting.com 51 Pageid#: 311 www.cavalier-reporting.com Cavalier Reporting & Videography Butters v James Madison University Pretrial Motions Job # 28170 17 26:13 27:25 30:15, 19 31:6, 8, 14 33:7, 13 34:6, 6, 15, 25 35:8 38:25 39:5, 18 41:20, 21, 22 42:19 cases 14:22 15:20, 22, 24 25:12 cat 42:9 category 33:13 cat's 40:21, 21 caution 7:16 15:11 cautioned 10:6 cell 4:13 7:7 ceremony 13:13 certainly 7:21 29:1, 2 40:22 41:6 certify 44:4, 8 challenge 25:22 challenging 31:23 characterized 37:24 charge 32:10 charged 32:14 charges 10:13 17:6 18:11 Charlottesville 44:13 checked 40:8 Chetner 22:9 choosing 22:14 Chris 26:9 CHRISTOPHE R 2:15 circle 7:1 8:14 16:10 Circuit 5:11 circulated 8:18 circulating 7:8 circumstance 25:5 circumstances 4:20 10:7 14:8 15:7 16:4, 8 19:7 21:1 23:25 25:3 39:17, 20, 23 40:16, 19, 24, 25 41:2, 3 cited 15:20 22:9 27:25, 25 30:22 34:7 City 4:14 6:21 26:17 Civil 3:6 claim 4:12, 15, 22, 25 5:25 6:10, 13 12:10 14:5 17:1 30:1 33:10 claims 9:18 12:13, 15 15:5 classes 13:10, 17 clean 21:3 32:25 clear 30:13, 15 32:24 33:4, 21 38:7, 18 42:5 clearer 32:21 clearly 15:6, 10, 19 20:19 21:25 22:1 24:19, 22 25:10 28:2, 6, 11 29:15, 18, 20 30:7 34:2, 25 39:1, 7, 12, 22 41:3, 20 42:20 clearly-unreaso nable 40:18 clerk 3:4, 5 client 35:9 37:10 38:1 close 35:16 closing 38:24 clubs 13:20 co-counsel 26:9 COLEMAN 2:13 26:8 39:15 41:18 coleman.allen@ allenandallen.c om 2:14 collectively 40:20 college 3:11 4:7 30:22, 23 commencing 2:4 commission 44:3 common 6:12 33:24 Commonwealth 2:3 44:1, 3, 21 communicate 27:5 communicated 38:8 community 8:13 compelled 28:13 complainant 22:12, 13 complaint 3:13 4:5, 9, 18, 20 5:4, 9 6:6, 7, 15 7:4, 12 9:17, 22 10:20 11:10, 19, 22 12:5, 22, 24, 25 13:7 16:13, 19 17:10, 19 19:11, 25 21:4, 15, 19 22:13 23:23 24:3, 4, 7 25:5 26:4 29:9, 21 30:9, 15, 20 32:18 33:4, 23, 25 34:1, 2, 9, 25 35:9 36:14 37:10, 11, 15, 21 38:3, 7 39:6 40:2 41:1, 13 42:10 complaints 9:7 19:22 complete 36:13 completely 34:2 comply 30:16 component 35:20 components 36:15 concern 3:16 14:11, 13 16:11 25:8 26:24 concerned 8:22 concerns 3:14 concluded 27:15 conclusion 21:17 34:14 conclusions 5:5 conclusive 22:25 conduct 17:16 18:7 29:23 30:2 conflict 6:5 conformance 20:10 confronted 19:2 consents 19:15 Conservation 5:13 consider 5:7, 16, 24 9:21 25:4 41:10 43:2 contact 12:11 13:14 27:5 contacting 19:15 contend 29:17 contending 20:9, 12 22:21 23:4 28:22 contention 37:17 context 8:9 10:12 18:14 31:12 32:17, 18 continue 27:6 38:21 continued 11:14, 18 21:10 continues 24:21 continuing 36:1 contract 31:10, 11, 13 contrary 32:7 contrast 32:8 control 8:19 conversation 8:6 37:25 converting 5:10, 22 copy 7:10 9:22 32:21, 25 core 39:4 correct 19:4 35:13 39:2 44:6 corrective 31:2 COUNSEL 2:8, 16, 25 3:9 7:16 Page 2 7/28/2015 30:5 32:3 33:22 39:15 42:24 44:9 counselor 10:25 16:23 40:7 country 34:19 County 14:20 15:25 course 27:17 29:8 32:21 34:11 COURT 1:1 2:5 3:3, 7 4:2 5:1, 7, 15, 16, 20, 23 6:3, 12, 19 7:11, 14, 15, 16 9:23 11:13, 20 14:21 15:8, 8, 16, 16 17:9, 21 18:6, 20 19:1, 17 20:7, 14 22:10, 16, 21 23:1 24:13, 21 25:4, 21, 24 26:3, 5 27:21, 24 28:21, 22 29:2, 14, 17 30:6, 19 31:4, 23 32:1 34:4 35:1, 3, 5, 14 36:2, 18 37:9 38:20 39:11, 11, 19 41:11 42:4, 23 43:4 44:5 courts 15:12, 17, 21 24:14 25:25 41:9 Court's 26:21 Crandell 30:22 create 28:8 created 7:7 creation 4:12 crime 26:15 29:13 33:8, 17, 18 critical 10:15 19:7 Daily 34:20 damages 24:24 date 6:25 12:3 22:19 27:14 Davis 14:20 24:13 25:23 27:24 34:4 42:5 day 6:23 42:4 44:13 days 12:7 deal 16:23 19:22 dealing 17:22 dealt 29:9 decided 12:9, 18, 22 19:12 24:2 40:11, 12 decision 22:5 29:11 34:12 41:12 decisions 11:25 14:12 15:13 21:24 24:15 25:19, 23 28:24 40:10 41:24, 25 42:2 declared 15:16 Defendant 1:9 2:25 3:20 defending 39:3 defense 27:20 30:4 32:3 33:21 deference 42:3 degree 28:20 deliberate 14:9 16:5 19:8 22:2, 7, 14, 19 23:17 24:18 25:2, 7 28:20 deliberately 4:8, 15, 22 15:2, 4 41:5 demonstrate 14:9 28:20 denied 27:10 28:9 deny 33:5 35:4 Department 5:13 depicting 7:9 27:11 described 9:11 detail 6:17 16:2 33:23, 25 39:7 41:13 detailed 16:14 determined 29:10 different 19:18 27:21 34:10 (434) 293-3300 Reported by R. Sugrue (800) 972-1993 Case 5:15-cv-00015-EKD-JCH Document 41Wendy Filed 11/06/15 Page 46 ofinfo@cavalier-reporting.com 51 Pageid#: 312 www.cavalier-reporting.com Cavalier Reporting & Videography Butters v James Madison University Pretrial Motions Job # 28170 difficulties 16:23 40:7 difficulty 11:1 DILLON 1:12 2:2 director 9:8 discernible 8:8 disciplinary 15:13 24:15 27:9 discipline 28:23 29:15 discouraged 21:17, 19 37:11 discouraging 38:9, 18 discovered 27:17 discovery 31:15 32:21 discrimination 14:18 Discussion 39:10 dismiss 3:18 4:1, 3 5:1, 3, 10 6:1 15:18, 22 26:3 42:7, 22 dismissal 16:3 dismissed 4:18 dissatisfaction 14:5 dissatisfied 13:25 14:1, 4 disseminate 36:19 disseminated 8:12, 21 9:11 11:8, 9 33:12 35:12 36:3 37:3 disseminating 8:17 11:6, 7 27:7 42:11 dissemination 4:12 9:14 11:2, 4, 12, 15, 18 21:10 26:19, 25 27:4, 13 33:19 35:7, 15, 16, 19, 22 36:1, 4, 9, 13, 17 37:6 42:8, 9, 14 dis-serve 40:23 dissuaded 16:21 21:19 distraught 19:10 DISTRICT 1:1, 2 2:5, 6 15:23 22:10, 16 documents 5:7, 17, 24 31:24 41:8, 10, 12 doing 12:1 16:22 20:21 21:21 40:9 doors 25:21, 25 draw 34:18 drinking 6:24 earlier 20:3 East 2:19 Eastern 15:23 educating 13:23 Education 14:21 educational 14:18 28:3, 9 effect 36:24 38:9, 10, 18 effectively 28:8 effort 26:1 27:5 36:11 37:2 either 8:1 31:11 elements 34:3, 10 ELIZABETH 1:5, 12 2:1 3:5 e-mail 3:10 11:24, 25 12:4, 6, 20 21:25 36:18 40:9 42:1 e-mails 12:4 emotional 40:7 emotionally 19:10 emphasize 31:19 emphasized 15:8 26:12 employee 8:24 30:25 employees 8:20 encounter 7:25 26:18 engaged 13:3 entail 16:14 entered 8:3 entire 27:8 entirely 8:7 entitled 18:14 24:16 environment 22:18 28:8 equipment 8:19 ESQUIRE 2:13, 15 establish 6:9 18:13 22:19 established 14:22 establishes 4:21 establishment 22:7 event 8:2 22:18 23:13 44:10 events 6:15 10:3 13:11 23:9 eventually 12:18 evidence 10:12, 18 17:6 18:4 31:15 38:5 evidentiary 36:23 evoked 24:10 exactly 12:17 23:25 examine 10:17 17:6 18:10, 11, 15, 18 exercised 18:25 exhibit 6:8 7:12 exhibits 6:5, 6 31:6, 9 expansion 35:23 expect 35:15 expectations 16:17 expected 38:15 expel 24:25 expelled 9:2 13:8 16:9 32:3 39:25 experience 28:11 experiencing 16:24 expires 44:4 explain 10:11 explained 9:9, 13, 16 10:5, 10 16:12, 15 17:2 20:3 32:16 37:24 40:2, 3, 4 explaining 10:3 21:20, 20 explanation 9:15, 24 21:22 explicit 6:17 23:22 explicitly 5:9 expressly 24:13 expulsion 10:6 24:17, 19, 23 29:10 exquisite 16:2 33:23, 25 39:6 extensive 5:19 extent 7:18, 20 33:9 extraordinary 29:11 facilities 8:19 fact 12:4 14:10 16:20 18:23 20:5 21:13, 21 23:14 24:25 25:16 27:13 28:12, 14 29:6, 9, 25 31:21 33:8, 11, 12, 17 34:15 37:4 40:20 41:14 facts 6:18 14:6 21:5, 9, 15, 16 39:7 factual 5:4, 19 factually 26:13 factually-correc t 37:22 failed 25:11, 13 fairness 14:13 17:4 false 37:16, 18 far 29:5 father 12:12, 14 22:3, 12, 17 26:11 father's 12:19 Page 3 7/28/2015 favor 5:6, 17 32:7 fear 28:14 fearful 17:20 features 26:13 federal 14:19 15:12 28:4 feel 31:6 38:25 fellow 6:21 9:19 12:16 felt 9:13, 14 file 12:22 19:21 22:12 40:2 filed 4:4 6:14 7:10 14:2 24:3 filing 12:23 16:13 24:7 37:11 finally 27:15 40:11 financial 14:19 finding 22:14 finish 39:3 first 11:3, 11, 23 12:7 13:7 16:12 26:16 28:1 35:10 five 27:24 34:3 five-and-a-half 27:1 five-part 27:23 flashes 8:10 Florida 4:14 6:21 focus 26:21 29:7 30:1 focusing 41:17, 18 FOIS 2:22 follow 8:6 25:13 30:25 31:22 followed 25:16 following 27:2 29:11 follow-up 12:10 force 36:14 foregoing 44:6 formal 10:22 12:22 16:13 19:2, 11 22:12 30:8, 15, 20 37:11, 20 forth 15:15 forthcoming 43:3 forward 17:1, 3, 8, 15 18:3, 15 19:13, 16, 22 20:2 33:3 34:6 35:1 36:9, 17 found 13:3 Fourth 5:11 Fowler 5:13 frankly 15:12 31:19 fraternity 9:1, 1 16:9 32:3, 11 39:25 fraternity's 32:6 Fredericksburg 2:11 free 4:6 full 21:22 27:15 31:13 44:6 fully 12:25 18:24 fundamental 14:13 17:3 funds 28:4 further 11:11 36:4, 20 37:3 42:12 44:8 Furthermore 6:4 future 42:13 GENERAL 2:18 16:11 General's 3:24 geometric 35:22 give 42:3 given 15:15 21:13 26:1 35:14 44:12 giving 33:9 go 10:21 11:20 19:10, 13, 22 20:2 35:1 goes 34:6 36:23 37:19, 23 going 19:13 36:4 Good 3:3, 21 gotten 36:7 graduate 13:10 (434) 293-3300 Reported by R. Sugrue (800) 972-1993 Case 5:15-cv-00015-EKD-JCH Document 41Wendy Filed 11/06/15 Page 47 ofinfo@cavalier-reporting.com 51 Pageid#: 313 www.cavalier-reporting.com Cavalier Reporting & Videography Butters v James Madison University Pretrial Motions Job # 28170 graduation 13:8, 10, 13, 15, 18, 21 29:11 grant 4:2 42:6, 21 greater 33:16 ground 33:24 guided 20:21 hand 44:12 handle 12:21 17:11, 23 24:2 handled 24:4 33:9 34:15, 23 handles 9:6 handling 29:4 32:5, 6, 9 hands 21:3 happened 7:4 8:2 9:10 29:8 harassed 9:13 11:14 harassment 4:7, 10 9:18 14:24 15:2, 5, 10 22:13 28:5, 7, 12, 17 31:1 39:21 hard 8:6 HARRISIONB URG 1:3 2:6 Harrisonburg 1:16 hear 3:19 17:5 32:2 33:16 heard 12:8 39:5 hearing 4:16 7:17, 18 10:1 19:2 24:6 27:14 37:21 43:6 hearings 13:1 18:24 24:8 held 12:25 22:11 23:16 24:7 help 10:25 11:2 40:7 Herndon 30:21 he-said 33:15 high 14:22 15:15 Honor 3:21 4:4, 18 5:2, 3, 18 6:7, 14 7:3, 22, 23, 24 8:14 9:20, 20 10:20 11:17 13:7 14:3, 16 15:20 16:4 17:17 18:1, 2 19:4, 5 20:3, 13 22:9 23:6 25:14, 20 26:7 31:25 39:9, 13, 15 40:15, 20 41:21 42:6, 21 HONORABLE 1:12 2:1 Honor's 6:2 hostile 22:18 28:8 identify 15:18 ignore 22:1, 3 image 8:6 immediate 19:6 24:11 immediately 9:2 13:15, 17, 20 24:25 37:7 impact 40:4 important 29:22 33:2 37:8 Importantly 11:5 24:16 impose 14:25 25:1 imposed 4:17 10:5 13:5 14:2, 7 25:7, 23 40:14 41:23 impropriety 3:14 inaccurate 16:19 inaction 30:4 inappropriate 14:9 inaudible 8:7 incident 8:15 27:2 29:24 37:5 include 39:7 included 10:14 including 5:8 6:23 8:18 10:3, 17 13:1, 10 15:22 24:8, 19 31:18 33:19 34:12 incomplete 38:14 inconclusive 20:6 independently 10:19 17:13 indicated 3:15 indicating 32:4 indication 33:4 indifference 14:10 16:6, 25 19:9 22:2, 8, 15, 19 23:17 24:18 25:2, 8 28:20 indifferent 4:9, 15, 23 15:3, 4 41:5, 6 individual 29:20 individuals 10:13, 14 11:7 13:6 19:15 24:10 42:2 informal 19:21 information 8:8 18:5 37:12, 15, 18 38:8, 13 informed 11:10 initial 17:2 21:11 initially 21:14 22:23 inquired 12:13 inquiry 22:11 40:12 inside 7:5 institution 14:25 15:1, 4, 9 28:3 institution's 15:6 30:25 instruct 27:6 instructed 24:14 37:6 instructs 25:24 insufficient 4:17 integral 9:21 intended 38:10 intends 14:24 intent 38:19 intentional 16:7 intentionally 41:4 interactions 9:12 interest 16:7, 11 25:9 interested 44:10 internal 20:10 interrupt 30:6 introduced 38:5 investigate 19:14 investigated 12:25 24:7 investigation 19:16 24:5 invited 7:2 involved 4:12 8:15 10:1, 15, 16 14:14 17:4, 15 involvement 10:9 17:12, 24 18:3 20:2 42:18 irrelevant 25:15 issue 24:17 27:22 31:10 issued 12:24 items 27:25 its 4:9, 19 6:12 21:3 25:13, 21 27:15 29:3 35:23 36:16 38:5 IX 4:6, 25 9:6 14:6, 16 15:22 29:25 33:10 34:1, 25 39:1 40:17, 17 JAMES 1:8 3:6, 19, 23, 25 JAMIESON 2:15 January 12:20 JMU 4:5, 6, 8, 15, 21 6:22 7:2 8:13, 20, 24 9:11 10:9, 24 12:14, 14, 24 13:5, 22 14:4, 25 16:5, 21, 23 17:1, 11, 14, 23 18:2 20:4, 21, 22 21:3, 9 22:2 23:10 24:4, 7, 22, 25 25:11, Page 4 7/28/2015 13, 16 26:20, 23 27:15 29:4, 23 32:13 34:12, 15, 23 35:4 36:11 37:8 39:1 42:12, 15 JMU's 8:19 9:5, 17, 25 12:15 13:4, 9 14:11 16:13 19:8 24:5 31:6, 22 32:7 42:13 Job 1:24 44:24 Jon 34:20 JUDGE 1:12 2:2 26:12, 15, 21 28:25 29:19 30:10, 21 31:14, 19 32:2, 15 33:2, 14, 21 34:5, 22 35:17 36:22 37:1, 19 38:12, 23 39:4 judgement 5:23 31:20 judgment 5:11 31:17 judicial 6:12 9:5, 8 13:22 July 1:15 2:4 3:1 juncture 39:2 JUNIOR 2:13 jury 39:5 key 35:20 36:15 kind 16:6 knew 7:1 21:10 know 4:4 23:6, 8, 20, 21 25:14 26:8 30:11 32:20 34:5 36:5 knowledge 15:2 28:16 known 5:12 15:7, 9 27:18 39:20, 21 knows 5:2 6:7 7:11 lack 16:7 25:8, 9 laid 34:3 large 2:4 44:1, 3, 21 law 6:12 15:19 30:16, 19 31:8 learn 7:6 learned 8:12 27:17 leave 28:13 left 11:22 level 26:2 29:5 liability 14:25 24:24 lie 38:12 life 16:16 40:5 light 15:7 29:12 limited 36:6 litany 13:5 little 8:8 19:17 location 11:6 logical 34:14 long 7:24 11:9 look 20:20 31:8 34:9 39:19, 23 40:19, 25 41:11, 19 looked 20:23 looking 19:5, 8 23:14 25:4 36:21 39:16, 17 40:16 41:22 lot 25:12, 21 26:1 39:16 MADISON 1:8 3:6, 19, 25 Main 2:19 Mainland 30:22 majority 33:14 making 7:19 30:15 34:20 41:12 male 6:25 7:9 males 4:13 8:25 9:2 16:9 managed 16:17 manner 7:17 38:7 39:21 (434) 293-3300 Reported by R. Sugrue (800) 972-1993 Case 5:15-cv-00015-EKD-JCH Document 41Wendy Filed 11/06/15 Page 48 ofinfo@cavalier-reporting.com 51 Pageid#: 314 www.cavalier-reporting.com Cavalier Reporting & Videography Butters v James Madison University Pretrial Motions Job # 28170 March 4:5 6:20, 24 26:17 Marshall 43:4 material 25:15 matter 12:21 14:6 15:10, 19 17:12, 23 19:14 24:2 35:11 matters 5:23 meager 5:5 mean 17:4 20:15 37:17 means 20:10 measures 31:3 Medicine 30:23 meet 36:16 39:7 meeting 11:4, 11, 16, 23 12:7 16:12 17:3 21:11 23:3 26:22, 23 27:1, 18 35:10, 25 37:25 38:16 42:11 meetings 23:22 38:3, 6, 17 meets 30:12 member 3:11 membership 9:3 memory 7:4 23:9 men 17:14 18:6, 8 27:6, 9 28:15 32:4, 10, 24 33:5 36:3, 6 37:4 39:24 mention 41:9 mentioned 20:7 21:8, 13 27:19 41:11 42:10 mentions 8:14 mere 6:6, 10 24:18 merely 15:9 31:1 39:21 MERISSA 2:24 met 8:23 9:7 39:24 mind 34:14 38:4 mischaracterize d 31:11 misconduct 13:4 24:23 misleading 16:20 37:16, 18 mocking 34:19 Monroe 14:20 months 12:13, 19 22:4 more-than 41:14 motion 3:18, 25 4:2 5:2, 10, 10 6:1, 16 15:18, 22 31:7, 16, 17, 20 34:24 35:4 36:25 39:8 42:6, 21 MOTIONS 1:13 41:8, 10 motion-to-dism iss 7:18 move 17:1, 3, 8 18:2 moved 17:15 24:6 40:14 moving 19:16 name 3:23 nature 29:12 35:21, 22 37:25 necessary 5:25 10:11 need 7:20 9:20 20:19 30:25 33:15 41:11 needs 25:18 39:5 41:5, 15 negative 9:11 negligence 29:1 40:15, 17 neither 44:8 never 33:19 37:5 New 30:23 next-best 10:23 NICHOLAS 2:22 nine 12:25 24:7 ninety 7:24 no-contact 12:24 non-penalty 34:16 normally 28:10 notarial 44:12 Notary 2:3 44:2, 20, 22 note 3:8, 17 17:10 31:5 33:2 35:7 38:24 noted 31:18 notice 22:17 noticed 13:2 24:9 notified 3:9 9:5 November 12:12 nsimopoulos@o ag.state.va.us 2:23 number 29:19 36:8 objection 3:16 obligation 30:14 obtained 32:22 33:1 obvious 32:22 occurred 8:1 14:7 23:9 25:6 26:14, 17 29:5 35:20 36:11 38:2 October 44:4, 13 OFFICE 2:18 3:24 9:5, 6, 9 13:22 offices 9:5 official 30:25 okay 7:13, 15 19:12 40:9 Once 40:12, 21 ongoing 26:25 35:21 36:1, 12 42:13 open 25:21, 25 opinion 43:3 opportunities 28:9 Opposing 39:15 opposite 14:10 18:24 order 5:17 10:11 12:24 43:2 organizations 13:20 Osteopathic 30:23 outlined 12:16 27:24 29:21 30:17 38:3 outside 33:13 36:25

p.m 1:14, 14 2:4 3:1 43:6 Page 30:24 painstaking 6:17 paints 10:20 21:2 Panama 4:14 6:21 26:17 Paragraph 11:14 17:11, 23 28:1 parents 40:12 part 4:16 15:1, 11 31:15, 16 32:4, 17 33:18, 19 34:13, 21 35:25 participating 13:12, 19 participation 10:15 particular 10:4 24:17 particularity 6:17 particularly 8:13 19:6 parties 3:13 8:2, 10 parts 26:15 29:13 33:8 party 44:9 party's 5:5 passing 41:9 patient 21:6 pattern 34:14 peer 39:21 peers 9:12 penalty 29:10 34:13 people 36:21 period 12:5 27:9 permanent 24:12 person 14:17 Page 5 7/28/2015 28:16 persons 19:21 person's 41:15 perspectives 8:4 pertinent 6:15 pervasive 28:7 phone 4:13 7:7 picture 10:20 21:2 39:16 place 27:1 28:12 29:4 34:10 Plaintiff 1:6 2:16 4:4, 14, 24 6:9, 14, 20, 23 7:1, 3, 10 8:11, 17, 22 9:1, 5, 9, 16, 25 10:2, 4, 8, 10, 18, 21, 24, 25 11:2, 3, 5, 9, 21, 24, 24 12:3, 8, 9, 9, 17, 18, 20 13:14, 25 14:3, 12 16:2, 6, 11, 13, 18, 22, 25 17:2, 7, 18, 19 19:9 21:2, 7, 8, 23 22:1, 17, 22, 22 23:8, 25 24:9 25:10, 20 26:10 27:20 28:2, 5, 9 31:11 39:24 40:1, 6, 8, 23 41:7 42:16 Plaintiff's 5:6 12:12, 14 14:23 16:1, 10, 16, 17 22:3, 5 28:1 41:5 42:18 Plank 2:10 plausible 4:25 6:10 14:5 plausibly 21:16 25:2 play 40:17 pleading 6:15 pleasure 26:9 pled 27:4 28:6, 11 34:9 point 6:25 11:18 17:22 19:6 33:22 35:2 36:9, 17, 23 38:17 41:7, 17 pointed 40:20 pointing 29:24 policies 9:17 13:4 20:5, 7, 20, 20 23:15 25:13, 14, 17 40:1, 2 policy 9:21, 25 18:19 20:10, 17, 17, 23 21:20, 21, 22 23:17 position 29:14 30:7 39:1 possibility 6:11, 11 possible 32:22 36:22 40:3 precedent 5:24 precluded 22:14 precludes 22:7 prejudice 4:3 preparing 16:11 presentation 13:23 17:18 presents 26:13 president 8:24, 25 PRETRIAL 1:13 prevail 6:8 prevent 35:19 36:8, 16 37:2 primary 26:24 prior 19:2 probability 34:7 procedure 31:22 37:13 procedures 25:14, 15, 17 30:18 proceed 10:9, 19 12:15 32:1 proceeding 3:16 18:10 44:10 PROCEEDING S 1:11 2:1 44:5, 7 process 4:16 9:16, 24 10:11, 16, 22 12:15, 16 14:1, 4, 7, 12 16:13, 14, 15, 19 17:3, 7 18:9 21:14 (434) 293-3300 Reported by R. Sugrue (800) 972-1993 Case 5:15-cv-00015-EKD-JCH Document 41Wendy Filed 11/06/15 Page 49 ofinfo@cavalier-reporting.com 51 Pageid#: 315 www.cavalier-reporting.com Cavalier Reporting & Videography Butters v James Madison University Pretrial Motions Job # 28170 24:6 25:6 27:15 30:20 31:16 35:21 36:12, 12 40:4 processes 22:20 professional 21:6 professionalism 43:1 program 14:18 34:21 prohibits 14:17 prompt 32:12 proposals 29:7 protect 24:24 proved 27:12 provide 6:18 32:18 provided 10:8 18:4 32:17 37:12, 15 38:13 provides 8:8 32:8 33:24, 25 providing 23:17 Public 2:3 5:8 44:2, 20, 22 punishment 4:17 14:4 24:19 40:14 punishments 13:6 14:1, 7 24:10, 11 25:1, 6 41:23 purposes 20:18 34:24 39:8 pursuant 9:17 18:9 pursue 22:5 23:17 pursuing 9:16 put 26:24 question 6:2 19:12 23:7 28:4 32:9 36:10 37:9 38:4, 11 questions 16:16 35:6 quite 14:10 18:23 26:23 32:22 quote 15:6, 12, 14 30:24 33:23, 23 34:8, 8 quoted 31:12 raising 32:9 ramifications 23:18 rapidly 8:4 reached 11:23 21:22 ready 10:21 40:13 reason 13:9, 16 15:17 18:2 20:4 32:13 reasonable 6:10 41:14, 14 reasonably 20:22 reasons 26:4 35:3 36:15 receiving 14:19 28:3 recitation 6:18 recognize 32:11 recollection 23:13 record 3:8, 17 39:10 records 5:8 Recreation 5:14 refer 29:21 32:3 reference 30:4 referred 10:24 16:22 29:12 33:22 40:6 referring 29:23 30:19, 21 refers 31:9 reflected 9:25 refrain 24:14 regard 27:20, 22 28:12 30:20 38:6 regarding 8:9 Regardless 19:14 Registration 44:22 reiterated 12:14 related 9:22 44:8 relation 29:24 relationships 10:14 relevant 15:1, 11 31:21 relied 5:9 relive 10:3 rely 5:20 remain 28:15 remedies 22:6 remedy 24:17 remote 34:8 reply 15:21 27:20 report 31:2 35:14 Reported 1:25 2:2 27:18 35:11 reporter 39:11 44:5 reporting 31:1 reports 36:2 reprisals 17:20 requesting 39:12 require 10:2 30:8 required 13:21 28:2 30:16 31:22 37:13 resolve 5:25 resolved 15:21 resolving 6:13 respect 6:4 9:18 12:6 14:11 21:11 41:7 respected 10:23 respond 15:9 39:21 responded 4:21 16:5 40:12 response 4:9 6:16 9:15 14:9, 11 15:6, 18 19:8 20:19, 25 24:18 28:19 32:23 34:19 41:3, 15 responses 24:21 responsibilities 32:14 responsible 37:5 result 11:1 return 26:20 returned 8:11 review 28:23 rewritten 29:7 Richmond 2:20 right 4:6 10:17 12:2 13:1 17:5 18:10, 11, 14, 18, 20 19:3 20:16 21:23 24:8 26:11 38:20 rights 10:16 18:25 20:5, 24, 24 rise 33:10 rises 29:5 Road 2:10 route 31:1 routinely 41:9 ROUZER 2:24 Rule 5:2, 17 31:7 34:24 36:25 41:8 sanctions 10:4 16:17 40:3 Sara 3:5 26:22 SARAH 1:5 26:10, 14 34:17 35:25 saying 29:25 30:11 33:4 scenario 33:16 school 15:14, 25 24:16, 24 28:10 seal 7:11, 14 44:12 seated 26:10 Second 26:17 second-guessin g 15:13 24:15 41:24 seconds 7:24 see 8:5 seeing 31:13 seek 25:21 seeking 29:6 selective 38:17 send 41:25 sense 6:12 Page 6 7/28/2015 sensitive 25:18, 19 41:15, 15, 16 sent 11:24 12:4 36:18 40:6 separately 7:11 serious 18:11 serve 28:23 session 6:22 set 13:6 15:15 seven 12:12 severe 28:7 sex 4:7 28:6 sexual 4:10 9:18 13:4, 23 14:24 22:13, 18 26:16 31:1 33:10 34:16 sexually 7:9 sheer 6:11 she-said 33:15 shifts 8:4 Shores 15:25 short 24:22 show 14:10 15:1 16:4, 8 18:23 21:9, 16 23:16 24:5 25:7, 8, 9 34:20 41:3 showed 16:10 showing 8:10 shown 8:16 18:17 shows 21:25 22:1 41:14 sides 33:16 SIMOPOULOS 2:22 3:21, 23 5:15, 18 6:4 7:22 11:16, 21 17:17, 25 18:8, 21 19:4 20:1, 12, 16 22:24 23:6 39:11, 13 Simply 38:24 single 16:20 sisters 8:16 situation 16:8 18:16 41:6, 16 six 13:1 24:8 social 7:1 8:14 16:10 socializing 6:24 somewhat 20:18 sorority 3:11 8:16, 24, 25 sorry 4:19 South 22:10 23:16 speak 39:12 specific 29:24 30:24 37:20 38:12 specifically 9:7, 17 17:10 20:8 spent 6:23 spoken 8:7 spring 4:11, 13 6:21 7:6 8:11 Stafford 15:25 stage 31:9 34:5 standard 5:12 14:22 15:15 24:20 27:21 29:2 30:12 40:15, 18 standards 39:8 42:20 standpoint 32:9 34:18 37:23 stark 32:8 start 16:5 38:1 39:3 state 14:5 stated 9:10 22:16 statement 36:7 37:20, 22 38:12 40:23 STATES 1:1 2:5 6:16 14:21 Stewart 34:20 stop 5:15 24:2 26:24 27:3 28:21 35:25 36:4, 11 37:6 Street 2:19 stress 27:23 29:22 strongly 26:12 student 9:19 13:19 14:23 24:23 28:3 30:14, 16, 24 (434) 293-3300 Reported by R. Sugrue (800) 972-1993 Case 5:15-cv-00015-EKD-JCH Document 41Wendy Filed 11/06/15 Page 50 ofinfo@cavalier-reporting.com 51 Pageid#: 316 www.cavalier-reporting.com Cavalier Reporting & Videography Butters v James Madison University Pretrial Motions Job # 28170 student-on-stud ent 14:24 15:5 students 6:21, 23 7:1, 8, 9 8:13, 15 12:16 13:3, 8, 24 14:14 17:4 20:23, 24 25:1, 22 26:20 28:10 36:19 subject 28:5 subjecting 14:17 subjective 5:5 subsequent 38:2, 17 substitute 29:3 success 34:7 suffice 12:5 sufficient 4:25 5:20 sufficiently 4:20 28:7 41:13 suggest 32:6 suggested 21:15 suggests 16:25 Sugrue 1:25 2:2 44:2, 20 sum 34:5 summary 5:11, 23 31:16, 20 support 21:5, 16 25:2 33:10 supports 16:20 Suppose 36:18 supposedly 27:21 Supreme 14:21 15:8, 8, 16, 16 24:13, 21 27:24 34:4 39:19 42:4 sure 3:13 7:15 42:15 surprised 32:2, 15 swiftly 24:6 40:14 systems 24:24 take 10:2 31:2 takes 33:13 talk 37:10 42:1 talked 17:14 30:3 37:5 39:15, 16 talking 29:1 36:3, 6 talks 31:8 tell 7:25 35:10 terms 35:23 38:14 test 27:23 textbook 34:1 38:25 Thank 3:7, 21 6:3 7:22 26:5, 7 31:4 35:5 39:9 42:22, 23, 24, 25 43:4 then-associate 9:8 thereof 44:11 thing 10:23 30:11 42:8 things 10:12 25:22 31:10 34:20 36:8 37:1 think 5:16, 18, 19, 25 7:19 17:17 18:8, 16 19:5, 7 21:4, 18 23:19, 20, 24 25:3, 20, 23 29:22 30:13 33:2, 21 34:22 36:22 37:1, 19 39:4, 18 40:25 41:13, 17 42:19 thinking 31:21 Third 26:19 thirty-minute 13:22 thoroughly 28:6 34:2 thought 20:22 thoughtful 24:10, 12 three 4:13 6:25 7:9 8:25 9:2 13:2, 6 16:9 17:14 18:6, 8 24:9 26:15 27:5, 9 29:13 32:4 33:5, 8 36:3, 6 37:4 time 6:22 10:2, 21 11:1, 6, 16 19:6 23:10 27:1, 18 33:1, 5 38:4 39:25 times 8:5 Title 4:6, 25 5:12 9:6 14:6, 16 15:22 29:25 33:10 34:1, 25 39:1 40:17, 17 today 3:9 TOEPP 2:15 26:9 told 10:18 17:12 24:1 37:6 38:9, 16 42:12 total 25:5 34:13 totality 4:19, 19 14:8 19:7 25:3 29:23 30:1 34:23 38:6, 14 39:17, 20 40:16 41:2, 19, 19 transcript 44:7 trial 15:21 trip 6:22 7:5, 6, 8 trivializing 34:16, 17 true 44:6 truncated 7:25 truth 5:3 trying 21:17 24:2 Tuesday 1:15 twelve 12:23 24:6 twenty-page 6:15 33:22 39:6 two 12:19 15:22 typifies 34:22 ultimate 14:1 25:22 34:12 ultimately 23:24 28:13 29:10 unchecked 11:4 understand 17:5 19:21 Understandabl y 8:22 understood 10:22 undisputed 14:6 22:20 unique 26:13 33:7 35:8 UNITED 1:1 2:5 14:21 universities 25:23 26:2 UNIVERSITY 1:8 3:6, 19, 25 22:10 23:16 26:1 28:14, 23 30:8, 13, 17 35:15, 18 36:5 39:20 41:23 university's 32:8 university-wide 36:7 40:23 42:1 unreasonable 15:6, 11, 19 20:19, 25 24:20, 22 25:10 28:19 29:15, 18, 20 30:8 39:22 41:4, 20 42:20 upset 8:23 urge 35:3 urging 27:21 USC 14:17 use 6:12 vague 22:23 23:5, 20, 20, 21 variety 37:1 vast 33:14 versus 3:5 5:13 14:20 15:24, 25 22:9 30:22, 23 victimized 9:14 11:15 video 4:13 7:7, 11, 13, 23 8:4, 8, 12, 16, 18, 21, 23 9:10, 13 10:8, 13 Page 7 7/28/2015 11:4, 6, 8, 15 18:3, 13, 15, 17 20:5 21:11 22:24 23:1, 11, 14 26:20, 25 27:4, 11, 12 32:16, 16, 19, 21, 25 35:7, 8 36:1, 19, 21 videotape 33:12 videotaped 33:11, 17 videotaping 26:18 33:18 view 5:6 29:3 33:25 38:18 viewed 7:23 26:14 34:16 VII 5:12 violated 4:6 violation 4:25 6:11 13:4 20:11, 14 37:7 VIRGINIA 1:2, 16 2:3, 6, 11, 20 3:24 15:23 44:1, 3, 13, 21 vs 1:7 waive 18:20, 21 want 7:14 17:19 19:10, 20, 22 20:8 21:24 40:10 wanted 3:8, 13, 17 22:12 42:17 way 30:17 32:7, 12 34:15 37:16 weeks 9:4 12:23 24:6 27:1 40:8 well 14:16 22:21 27:13 28:11 well-being 16:12 well-pled 5:4 Wendy 1:25 2:2 9:7 26:23 27:3 28:17 30:3 32:23 35:25 36:16 38:1 44:2, 20 went 6:20 11:4 18:24 34:18 35:9 36:15 We're 3:18, 25 17:21 19:13, 15 29:1, 2, 6 WESTERN 1:2 2:5 We've 30:3 31:18 whatsoever 13:10, 14, 16 wide 35:14, 16 42:9, 13 widely 35:11 36:3 widespread 36:12 WILBUR 2:13 wiped 21:3 wit 44:1 witnesses 10:18 17:7 18:12, 18 words 8:7 14:8 work 13:21 works 32:7 wrote 22:3 year 27:15, 17 29:9 34:11 yesterday 3:10 York 30:23 Young 9:7, 16 10:5, 8, 10, 18, 22, 23 11:23 12:8 16:10, 21, 22 17:2 21:5, 9, 22 23:4 24:1 26:23 27:3, 6, 9 28:14, 17 32:4, 10, 23, 24 33:5 35:25 36:16 37:4 38:1 39:24 40:1 Young's 9:24 30:3 (434) 293-3300 Reported by R. Sugrue (800) 972-1993 Case 5:15-cv-00015-EKD-JCH Document 41Wendy Filed 11/06/15 Page 51 ofinfo@cavalier-reporting.com 51 Pageid#: 317 www.cavalier-reporting.com Cavalier Reporting & Videography