BOUDIN, Circuit Judge.
This appeal involves a lawsuit seeking damages for sexual harassment brought in the district court by the plaintiff, Marketa Wills, against Brown University and one of its former teachers, Professor Kayode Adesogan. The principal issues on appeal, but not the only ones, involve Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. The background events and the proceedings in the district court are as follows.
Adesogan, a chemistry professor at a Nigerian university, taught as a visiting professor at Brown between 1991 and 1994. In the fall semester of 1992, Wills— then a sophomore at Brown—took a course in organic chemistry. Although assigned to a section taught by Professor Ronald Lawler, Wills began to attend lectures in the other organic chemistry section, this one taught by Adesogan. Wills had earlier introduced herself to Adesogan at a social event and attended a small study group held by Adesogan in addition to his formal lectures.
On December 9, 1992, Wills sought out Adesogan in his office because she was having difficulty in the course. During this encounter, while purporting to pray with Wills, Adesogan twice pulled Wills into his lap, allegedly put his hand under her shirt, rubbed her stomach and twice touched or rubbed her breasts. The next day Wills met with Dean Karen Romer, who was then associate dean of academic affairs and had special responsibility for sexual assault or harassment claims; on December 14, 1992, Wills filed a written complaint. This incident lies at the core of Wills's subsequent suit against Brown and Adesogan.
In response to Wills's written complaint, Provost Frank Rothman and Dean of Faculty Bryan Shepp met with Wills on December 14, 1992, and then separately with Adesogan on December 15, 1992. Adesogan admitted hugging Wills, drawing her onto his lap and touching her breast, although he denied placing his hand under Wills's shirt. By letter dated December 23, 1992, Rothman placed Adesogan on probation, stating in a written reprimand that a further incident would be grounds for immediate dismissal but that this appeared to be Adesogan's first instance of improper behavior during his stay at Brown.
Schleussner had also complained to a chemistry department lecturer whom she knew and trusted, and that lecturer spoke in due course with Lawler, who taught the other section of organic chemistry. Lawler in turn told Adesogan that students would feel more comfortable if Adesogan kept his door open when conferring with students, but Lawler—who may have known few details—did not further advise the provost or anyone else in Brown's administration.
In February 1993, Rothman accepted the recommendation of the chemistry department that Adesogan be retained for another year and given a raise. In September 1993, another student, Tilly Gurman, filed a complaint that Adesogan had sexually harassed her in the fall of 1992. Romer informed Rothman, and Romer suggested no action because the Gurman incident had occurred before Adesogan had been reprimanded, and both Romer and Rothman believed that the warning to Adesogan in December 1992 had been sufficient.
In January 1994, another student, Amy Sanford, reported to Romer that between the fall of 1993 and January 1994, Adesogan had engaged in inappropriate conduct with Sanford (e.g., by repeated hugs and kisses), and Sanford told Romer that Adesogan had previously harassed another friend. Romer reported the matter to her immediate superior but it was not carried further, apparently because Sanford had not wanted it officially pursued.
Wills, after her own experience with Adesogan in December 1992, had not sought any further contact with him. She saw him thereafter on two different occasions: first, on an unspecified date, Adesogan entered a drugstore where Wills was working, and Wills immediately retreated to a back room; second, in January 1994, Wills enrolled in another chemistry course and discovered that Adesogan was the teacher. Wills testified that she rarely attended the lectures after the first session, but Adesogan did not long remain at Brown. During March 1994, Brown received further complaints of harassment by Adesogan from six or more other female students. That same month Brown dismissed Adesogan. Wills ultimately graduated from Brown and later enrolled in medical school in Pennsylvania.
In December 1995, just short of three years after her meeting with Adesogan, Wills filed a complaint in district court against Brown and Adesogan. The complaint set forth eight counts against Brown, Adesogan, or both, under state law (counts I through VIII
This disposition left for trial four separate claims against Brown: assault and battery (count I), negligent supervision (count III), and sex discrimination based both on a hostile environment and a quid pro quo theory (counts IX and X). Trial began on March 19, 1998, and when Wills rested her opening case, the district court granted Brown's motion for a directed verdict only as to the assault and battery claim and the quid pro quo sex discrimination claim. Fed.R.Civ.P. 50(a). Following further evidence, the negligent supervision and hostile environment claims were submitted to the jury.
On March 31, 1998, the jury returned a verdict in Brown's favor on both claims. Thereafter Wills filed a post-trial motion seeking judgment notwithstanding the verdict and, alternatively, a new trial on these same claims. Fed.R.Civ.P. 50, 59. The district court denied Wills's motion and entered judgment in favor of Brown. Wills now appeals, challenging (in her main argument) the district court's exclusion of evidence on her hostile work environment claim which was rejected by the jury. She also attacks the district court's grant of summary judgment on three of the state tort claims, its grant of directed verdicts on her assault and battery and her quid pro quo claims, and its denial of a new trial on the two claims rejected by the jury.
1. Title IX forbids schools that receive federal funding from discriminating against students "on the basis of sex." 20 U.S.C. § 1681(a). Starting from the now-accepted premise that sexual harassment can constitute sex discrimination, Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986), the Supreme Court has endorsed two different, although related, theories as to how such harassment can constitute sex discrimination either in the workplace (Title VII) or school context (Title IX).
One theory, popularly known as "quid pro quo" harassment or discrimination, occurs most often when some benefit or adverse action, such as change in salary at work or a grade in school, is made to depend on providing sexual favors to someone in authority, Lipsett v. University of Puerto Rico, 864 F.2d 881, 898 (1st Cir.1988); the other theory, under the rubric "hostile environment," applies where the acts of sexual harassment are sufficiently severe to interfere with the workplace or school opportunities normally available to the worker or student. Meritor,
Broadly speaking, a hostile environment claim requires the victim to have been subjected to harassment severe enough to compromise the victim's employment or educational opportunities and, in the case of a Title IX claim (but not under Title VII), the institution must have had actual knowledge of the harassment and have exhibited deliberate indifference to it. Gebser, 118 S.Ct. at 1997-99. If the institution takes timely and reasonable measures to end the harassment, it is not liable under Title IX for prior harassment. Id. Of course, if it learns that its measures have proved inadequate, it may be required to take further steps to avoid new liability.
From the outset, Wills's main claim based on a hostile environment theory has been that Wills was harassed by Adesogan on December 9, 1992, and that Brown is responsible for Adesogan's wrongdoing under Title IX because Brown had prior notice of the earlier Schleussner episode but did nothing to prevent the threat to other students such as Wills. Wills wanted the jury also to know that after her own harassment on December 9, Brown did not immediately remove Adesogan from the faculty or otherwise take action beyond the reprimand; and, far more important, she wanted it to know that Brown later received additional complaints from others in 1993 and 1994 that Adesogan had harassed a half-dozen or more additional victims. The admissibility issue was presented and resolved in limine.
In excluding the evidence, the district judge reasoned that if Brown had sufficient prior knowledge of the Schleussner episode—and this was a fact question— then it was responsible for Adesogan's action on December 9, 1992, regardless whether it later took adequate remedial steps and regardless whether it got later complaints from other students. Conversely, even if the remedial steps were inadequate and other students were later harassed, this did not create liability on Brown's part for Adesogan's harassment by Wills on December 9, 1992, before the reprimand and before the complaints received in 1993 and 1994. On this theory, the judge drew a sharp line between what happened before and after December 9, 1992.
At different times, Wills has offered different theories as to why the post-December 9 evidence in question is relevant to Brown's liability, but the argument principally made in the district court—and the only argument fairly developed in her opening brief in appeal—is this: the showing of an inadequate response to harassment is a standard issue in Title IX litigation and (says Wills) she was therefore entitled to show that Brown's response in December 1992 was inadequate and failed to prevent the harassment of other students thereafter. Wills has cited throughout a set of cases, including one of our own, where inadequate response evidence was central. See, e.g., Gebser, 118 S.Ct. at 2000; Lipsett, 864 F.2d at 902-07.
The difficulty for Wills is that evidence of an inadequate response is pertinent to show fault and causation where the plaintiff is claiming that she was harassed or continued to be harassed after the inadequate response. See Gebser, 118 S.Ct. at 1999; Lipsett, 864 F.2d at 907. But here, as already noted, Wills's claim was of a single specific harassment incident that occurred
Here, in relation to Brown's liability for the December 9 incident, the reprimand evidence was perhaps thinly relevant because, although it had nothing to do with whether Brown had prior notice before December 9 or whether Adesogan's behavior on that occasion violated the statute, it could arguably have been admitted as casting some backward light on Brown's general attitude—and therefore on the issue whether Brown was "deliberately indifferent" in its handling of the Schleussner claim and the resulting exposure of other students, including Wills, to Adesogan's behavior. But the reprimand was at best marginal to the main issues at trial—the key evidence on "deliberate indifference" was what Brown knew and what it did in response to Schleussner's complaint—and, taken alone, the reprimand was more favorable to Brown than to Wills (Brown wanted it in evidence). As it happens, the jury later learned that Adesogan had not been fired until 1994.
Wills's real hope was the evidence as to later claims made by other students, Brown's arguably casual treatment of the Sanford claims in January 1994, and the obvious harm inflicted on others by Adesogan's continuing depredations. Yet, this evidence is even more remote to Brown's general attitude in 1992, had a potential for severe prejudice, and would have required the trial to explore circumstances surrounding claims and acts of harassment of other victims which—unlike the Schleussner episode—had nothing to do with the vital question whether Brown had notice prior to December 1992.
In her reply brief on appeal, Wills offers a different theory entirely. In effect, she asserts that Adesogan's harassment of her continued after December 1992 because Adesogan remained as a teacher and Wills was shocked and upset to find him in January 1994 as her teacher in new chemistry course. Her deposition gives a somewhat tamer description of her reaction, but in any event Wills was not required to take any course from Adesogan. Wills's other exposure to Adesogan was a chance glimpse of him in a drugstore at some earlier, unidentified point.
It is sufficient answer that theories offered for the first time in the reply brief are not preserved. Executive Leasing Corp. v. Banco Popular, 48 F.3d 66, 67-68 & n. 3 (1st Cir.1995). Indeed, it is doubtful that Wills said enough in the district court to preserve the argument for appeal; at best, there are a few hints. But even if preserved below, the argument has to be renewed in the opening brief on appeal, so that the appellee has a chance to respond. Reply briefs are to counter the appellee's arguments, not to offer new theories of error for the first time. Nevertheless, Wills's belated continuing harassment theory is a very weak one on these facts. On some cases, merely to maintain a harasser in a position of authority over the victim, after notice of prior harassment, could create new liability. But it would not be easy to describe Adesogan's mere presence on a large campus as harassment of Wills, or to describe Brown's reasonably firm reprimand as representing "deliberate indifference" under Davis, 119 S.Ct. at 1673. Brown's treatment of Sanford's January 1994 complaint is a closer question on the latter issue, but even here Sanford's request for anonymity is not irrelevant and the connection to Wills is slight.
However, we need not decide whether this continuing harassment theory could be made to work on the present facts. Even if this theory was fairly presented to the district judge which we doubt—Wills did argue that she had suffered damages after December 1992 but that is a quite different matter—it was not preserved on appeal.
Wills's remaining evidentiary claims can be briefly answered. She complains that in a non-responsive answer to a question from Wills's counsel, one of the Brown officials testified that Brown had fired Adesogan, and Wills then brought out the fact that he was not fired until March 1994. The district court did not permit further inquiry, and Wills now says that she was "severely prejudiced" by the non-responsive answer and wrongly deprived of the opportunity to explain to the jury that the reason he was fired was "for sexually assaulting nearly seven women in one week."
But telling the jury that Adesogan had been fired in 1994 was hardly harmful to Wills: it showed that Brown did not fire Adesogan in December 1992—the very point that Wills says she was so anxious to present to the jury to show the inadequacy of the reprimand—and it probably indicated to the jury that Adesogan's behavior was even worse than it had already been led to believe by Wills's own testimony. The reasons for excluding the March 1994 harassment incidents has already been discussed.
Finally, Wills complains that she was prevented from offering testimony from two students, Tilly Gurman and Eve Zaritsky, who were ready to testify that Adesogan had harassed them in the fall of 1992. Gurman admittedly did not report the incident to Brown until September 1993, and there is no indication that Zaritsky ever reported her allegations. Nothing supports Wills's argument on appeal that the evidence should have been admitted because it increased the likelihood that Brown knew of these incidents prior to December 1992 and was therefore more culpable for failing to remove Adesogan prior to the December 1992 incident with Wills. One other objection to testimony involving former Brown dean, Toby Simon, is not worth discussing.
2. We turn now to Wills's remaining claims of error, starting with the district court's grant of summary judgment as to three of her ten claims: intentional infliction of emotional distress, negligent hiring, and negligent retention. Wills has not appealed from the grant of summary judgment as to the negligent entrustment claim. All four of the these claims are governed by Rhode Island law.
Starting with intentional infliction of emotional distress, the tort requires "extreme and outrageous" conduct that "intentionally or recklessly" causes severe emotional distress, which must include some physical symptoms. Andrade v. Jamestown Housing Authority, 82 F.3d 1179, 1187 (1st Cir.1996); Elias v. Youngken, 493 A.2d 158, 163-64 (R.I.1985). Wills's opening brief simply asserts in a few sentences that Brown's conduct was extreme and outrageous because it ignored student complaints of sexual harassment by Adesogan and thereby "allowed Adesogan to assault Ms. Wills unfettered."
The only knowledge that Brown was shown to have had before the "assault" was the Schleussner incident, but it is common ground that Schleussner did not want to file a formal complaint. Very difficult problems are posed in balancing a student's request for anonymity or limited disclosure against the need to prevent future harassment. Viewed in retrospect, Brown's procedures left much to be desired. But there is nothing to the notion that Brown was behaving outrageously when it failed to pursue the Schleussner complaint beyond the limited informal measures instigated by Schleussner herself.
Under Rhode Island law, an employer is required to exercise reasonable care in selecting its employees.
Wills's last argument, as to summary judgment, is that the district court should not have stricken the reference to "retention" in her count claiming negligent supervision and retention. The district court struck the retention language because it said that no authority had been provided for such a claim under state law and it thought that the multiplicity of locutions was confusing. The court also said that there was no basis for finding Brown negligent in not firing Adesogan prior to December 1992 and that the only plausible claim was for negligent supervision, which the court sent to the jury.
Assuming for the moment that there is a separate state law claim under state law for negligent retention, the two claims on these facts are very close and lack of adequate supervision is certainly the stronger of the two. Indeed, on appeal— in the very brief passage addressed to this issue—Wills muddles her two theories by arguing that "Brown did not supervise or monitor" Adesogan, or give him sexual harassment training or counseling, even after he was put on probation. On the present facts, we are not persuaded that Wills adequately explained her separate "retention" theory or was prejudiced by its omission.
The remaining substantial objections are to the district court's grant of a directed verdict in favor of Brown on two other counts: the quid pro quo theory of sexual harassment under Title IX and the assault and battery claim under state law. The test, in both cases, is whether a reasonable jury could on the evidence presented find in favor of Wills, resolving doubts and credibility issues in her favor; and our review on this issue is de novo. Combustion Eng'g, Inc. v. Miller Hydro Group, 13 F.3d 437, 441 (1st Cir.1993).
The quid pro quo theory presents the more complicated issues and we begin with it. Quid pro quo cases normally involve situations in which someone with authority over the victim inflicts a penalty or withholds a benefit to obtain sexual favors, Lipsett, 864 F.2d at 898, and it is easy to understand why the district judge doubted that this case fell into that category. Wills was not a student of Adesogan in December 1992, he had no authority over her grade, he never said anything that conditioned her grade or his tutoring services on Wills's agreeing to submit to his advances, and—as the district court pointed out—she did not testify that she understood Adesogan to be making to such a threat. Accordingly, the judge withdrew this theory from the jury.
We are not certain that we agree with the district court's reasoning, although the question may be a close one and need not be finally resolved here. Patently, Wills's stronger claim was for hostile environment and the quid pro quo claim is a stretch. Indeed, in Ellerth, the Supreme Court recently spoke of the "limited utility" of distinguishing between quid pro quo "threats that are carried out" and "bothersome attentions" so severe as to create a hostile environment. 118 S.Ct. at 2264. But at present the categories remain and, if they are to be entirely elided, it is for the Supreme Court to do so. Thus, our question is one of evidence.
Here, it could be argued that while Adesogan had no authority over Wills's grade, informal tutoring is a benefit of Brown's offering; Adesogan's hugging and touching effectively cost Wills the opportunity for further tutoring from Adesogan;
Brown chose in its closing argument to focus primarily on the lack of notice to Brown based on the Schleussner episode, arguing that there was a conflict between Tanenbaum and Schleussner on the issue and that Tanenbaum should be believed. Secondarily, Brown argued that Wills had not been damaged. Either theory would also dispatch the quid pro quo claim but the jury may have adopted neither of these arguments; during jury deliberations it asked the judge to further explain the concept of hostile environment. He declined to elaborate, and a general verdict followed in favor of Brown so we do not know on what ground the jury actually resolved the matter.
However, even if the jury found both notice and damage, a jury that (improbably) thought Adesogan's actions too mild to create a hostile environment could not easily have concluded that Wills had been denied the benefit of Adesogan's tutoring. Thus, on the realistic assessment we are asked to make under the harmless error doctrine, there is no practical likelihood that the weaker quid pro quo claim would have prevailed before a jury that rejected the stronger (and manifestly more applicable) hostile environment claim. On our facts, the refusal to instruct on quid pro quo, assuming arguendo that it was error, was harmless.
This brings us to Wills's claim that the district court erred in directing a verdict on the assault and battery charge. Since Adesogan's conduct could easily be viewed as assault, the directed verdict turned on whether Brown could be held liable under Rhode Island law for the intentional tort of assault by Adesogan, Brown's employee. Wills argues that under Rhode Island law, a jury could find Brown liable for Adesogan's offensive touching of Wills on December 9, 1992, because it occurred during the course of an activity that he was hired to perform, namely, the instruction of students. The district judge ruled that this was not the law of Rhode Island.
Although (surprisingly) we are not entitled to give special weight on this issue to the experience of the district judge with Rhode Island law, Gibson v. City of Cranston, 37 F.3d 731, 735 (1st Cir.1994), the cases confirm his conclusion. In Rhode Island, an employer is not liable for an assault by its employee merely because it occurred during the course of employee's
Obviously, it was no part of Adesogan's duties to hug and grope students who came to him for tutoring. Rhode Island could easily extend liability for intentional torts more broadly and may have done so by statute in some situations. But it has not done so for assault, and the line drawn by Labossiere and Bryce remains in force. Drake v. Star Market Co., Inc., 526 A.2d 517 (R.I.1987). Accordingly, the assault claim was properly withdrawn from the jury because—fully accepting Wills's version of events—Adesogan but not Brown was liable for the assault under state law.
Wills's final ground for appeal is the district court's denial of her motion for new trial on the two remaining claims (hostile environment and negligent supervision) rejected by the jury. The district court's discretion in granting or denying a new trial is very broad and the arguments made by Wills are in substance some of the same claims we have already addressed (and no others). This was surely a close case on the claims that went to the jury and it could easily have been resolved in Wills's favor, but juries are there to decide close cases, and nothing required the district judge to afford Wills a new trial.
The judgment of the district court is affirmed. Each side shall bear its own costs on the appeal.
It is so ordered.
LIPEZ, Circuit Judge, dissenting.
This is a vexing case for many reasons. The facts are difficult. The applicable law is complex and evolving. Struggling with these unruly elements, the trial court imposed a simple but erroneous limitation on Wills's Title IX hostile environment claim by taking an unduly restrictive view of the relevant evidence. Wills's articulation of this hostile environment claim, both at trial and on appeal, was not a model of clarity. The waiver issue on appeal is a close one. In the end, however, despite the thoughtful analysis of my colleagues, I cannot agree that Wills waived on appeal her claim that Brown is liable for hostile environment sex discrimination on the basis that Brown failed to respond adequately to the hostile educational environment created by Adesogan's assault on her and by his continuing presence in the classroom after that assault. That conclusion requires me to explain why I believe that Wills is entitled to a new trial on her claim.
The discussion of the waiver issue on appeal requires an understanding of Wills's presentation of her hostile environment claim to the trial court. Wills presented a hostile environment claim that was premised, in part, on Brown's liability for the December 9, 1992 assault. The district court allowed this claim to go to the jury and she fairly lost on it. But Wills also presented a separate hostile environment claim that was premised on Brown's liability for its inadequate response to the hostile educational environment which arose for Wills following the December 9 assault. For the purposes of this claim, Wills consistently maintained that subsequent events evidence (events following the December 9, 1992 assault) was relevant to establishing Brown's liability.
Beginning with her complaint, Wills alleged that as a result of Adesogan's sexual assault, she was
In her memorandum in support of her Motion for a Partial Summary Judgment, Wills argued, inter alia, that a single incident of sexual harassment can be severe enough to give rise to a hostile environment and that Adesogan's assault on her was "sufficiently severe or pervasive to alter her education and create an abusive educational environment. . . ." Later, during a pre-trial hearing, Wills requested additional time to conduct discovery on issues pertaining to Brown's response to her notice of the assault. She argued that
The court took a different view of the relevance of such evidence:
(emphasis added). The court's reference to the relevance of a second assault on Wills is particularly important. The court recognized that even if Wills could not prove that Brown knew of the assault by Adesogan on Laura Schleussner, and hence could not establish that Brown should have prevented Adesogan's assault on her, she would still have a claim against Brown for hostile environment discrimination based on the inadequacy of Brown's response to her report of a sexual assault, but only if Adesogan assaulted her a second time. The court did not accept the proposition that the hostile environment could be the product of events that flowed from the single assault by Adesogan, including Wills's reaction to the assault and Adesogan's continuing presence in the classroom.
Despite the court's exclusion from Wills's case of liability evidence subsequent to the December 1992 assault, Brown still felt the need in its oral motion for a judgment as a matter of law at the close of Wills's case to argue that the evidence failed to prove that the assault, although severe, "alter[ed] her educational environment." The background for Brown's concern was a footnote in a First Circuit case, Brown v. Hot, Sexy and Safer Productions, Inc., 68 F.3d 525 (1st Cir. 1995), in which we said that "we do not hold that a one-time episode is per se incapable of sustaining a hostile environment claim." Id. at 541 n. 13. In response to Brown's insistence that a hostile environment could not be established by the single incident described by Wills, the court queried:
The court then made this observation:
(emphasis added). Brown responded again:
At this juncture, the court and Brown both recognized that evidence of Brown's liability for a hostile environment subsequent to the assault by Adesogan on Wills must include evidence beyond the assault itself. Yet that was the very liability evidence that the court had not permitted Wills to introduce.
In response to this colloquy between the trial court and Brown, Wills's counsel attempted to again call attention to the existence of the hostile environment occurring after the assault, focusing on Wills's inability to take advantage of education opportunities on campus. She explained:
Despite its intimations of interest at the close of Wills's case, the court ultimately rejected any claim for hostile environment discrimination based on Wills's experiences or Brown's response after the December 1992 assault:
After the verdict, Wills reiterated in her motion for a new trial that the trial court "prevented [her] from showing Brown failed to take appropriate action to end the harassment. Therefore, [she] could not prove one of the elements she was required to prove under Lipsett to establish Brown's liability for hostile environment sexual harassment."
Despite Wills's arguments to the contrary both before and throughout the trial, the court took the position that, absent a second physical assault by Adesogan on Wills, or some form of direct harassment, Wills had no claim for sex discrimination against Brown occurring after December
In Wills's opening brief on appeal, she focused, inter alia, on the school's response to her complaint:
In elaborating on this "totality of the circumstances" view of hostile environment discrimination in her opening brief, Wills focused far too much attention on the trial court's alleged error in excluding evidence of Adesogan's sexual assaults on other female students at Brown before and after the assault on Wills, without relating that evidence to her own experience of a hostile environment at Brown. She did not refer explicitly to her claim that the "totality of the circumstances" of a hostile environment included her reaction to the assault on her by Adesogan and his continuing presence in the classroom.
In her reply brief, Wills referred to the continuing presence claim more clearly: "Wills continued to suffer harm after Adesogan sexually assaulted her due to his continued presence on campus without any real imposition of discipline for his egregious conduct toward her." She then elaborated:
Brown never filed a motion to strike this portion of Wills's reply brief as unfairly presenting a new issue. At oral argument there was extensive discussion of the hostile environment claim and the propriety of the district court's decision to exclude all post-December 9, 1992 evidence. In both Wills's argument and Brown's, there were inquiries about Wills's continuing presence claim of hostile environment discrimination. Instead of arguing that Wills had waived this claim by not raising it in her opening brief, Brown addressed the claim on its merits, arguing that there was no
Without minimizing the deficiencies in the quality of Wills's opening brief on appeal, I think there is a significant difference between an argument that is waived and one that is argued poorly. Wills argued her continuing presence claim of hostile environment discrimination to the trial court. This argument in the trial court fairly informs the reference to the "totality of the circumstances" claim of hostile environment discrimination set forth in her opening brief on appeal. She returned in her reply brief to the explicit iteration of the continuing presence claim of hostile environment discrimination presented to the trial court. Brown never argued in writing or orally that Wills had waived on appeal this claim of hostile environment discrimination. Given the prominence of this claim before the district court, its adequate explanation in the reply brief, and the attention it commanded at oral argument, Wills's vague reference to it in her opening brief should not preclude our consideration of this important issue.
II. Wills's Claim
There is no dispute that, following the incident on December 9, 1992, Wills was never again physically assaulted or verbally harassed by Adesogan. Nonetheless, Wills argues that Adesogan's continuing presence on the faculty and in the classroom created a hostile environment that altered the terms and conditions of her educational environment, thereby establishing the basis for a claim of sex discrimination against Brown under Title IX. The majority recognizes that "in some cases, merely to maintain a harasser in a position of authority over the victim, after notice of prior harassment, could create new liability." This is an important recognition. The majority also notes, however, that Wills's "continuing harassment theory is a very weak one on these facts."
I think we should be wary of characterizing the strength or weakness of a case that Wills was never allowed to develop fully because of the exclusionary rulings of the trial court. Nevertheless, given what we do know of Wills's case from pre-trial submissions and arguments before the trial court, I think she offered the outlines of a plausible claim of continuing presence hostile environment discrimination that she was entitled to present to a jury. I therefore agree with Wills that the trial court erred in excluding any evidence of Brown's liability for hostile environment discrimination based on Brown's response to Wills's complaint of a sexual assault by Adesogan and its response to other information and events subsequent to December 9, 1992. I must explain that position more fully.
A. Title IX and
Gebser v. Lago Vista Independent School District
Title IX provides that "[n]o person . . . shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." 20 U.S.C. § 1681(a). Title IX imposes an obligation
When Wills brought her case against Brown in 1995, there was uncertainty about the standards of liability for educational institutions under Title IX. The Supreme Court ended this uncertainty in Gebser v. Lago Vista Independent School District, rejecting institutional liability based on agency principles or constructive notice to establish institutional liability. See Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 118 S.Ct. 1989, 1999, 141 L.Ed.2d 277 (1998). The Court explained that Title IX creates obligations that are contractual in nature, "conditioning an offer of federal funding on a promise by the recipient not to discriminate." Id., 118 S.Ct. at 1997. The focus of Title IX is on "protecting individuals from discriminatory practices carried out by recipients of federal funds." Id. This focus differs from Title VII, which prohibits sex discrimination without regard to federal funding. See id. On the basis of the distinct purpose of Title IX, the Court concluded that:
Id. at 1999.
Accordingly, in a Title IX action, a plaintiff must allege that the recipient of the federal funds—the educational institution— was deliberately indifferent to discrimination on the basis of sex. To establish the institution's liability, a plaintiff must show that the school had "notice" of the alleged discrimination. See id. Even if the school had notice of the alleged discrimination, it is not liable for a Title IX violation unless its response amounted to "deliberate indifference to discrimination." See id.
B. The continuing presence claim of sex discrimination
Sex discrimination in education involves the denial of educational benefits or the
In Gebser, a student who had been involved in a sexual relationship with her teacher sued the school district under Title IX. Once the school was given notice of the sexual relationship between the student and teacher, the school immediately fired the teacher. Therefore, the Court had no occasion to consider the relationship between the continued presence of the teacher in the school and altered conditions of education. However, in Patricia H. v. Berkeley Unified School District, 830 F.Supp. 1288 (N.D.Cal.1993), a district court squarely addressed this issue. Patricia H. brought suit against the school district on behalf of her daughters. Patricia H. had been involved with a teacher in the school district (Hamilton) who, she alleged, molested both of her daughters while Patricia H. and Hamilton were dating. Patricia H. filed criminal charges against Hamilton.
Id. at 1296-97 (footnotes omitted).
The proposition that the presence of a harasser can rise to the level of hostile environment sex discrimination finds support in the Title VII context.
C. The continuing presence claim of sex discrimination in this case
1. The hostile environment: the conduct of Adesogan and its effect on Wills
Wills was enrolled in organic chemistry in the fall of 1992 because she planned to attend medical school. Because Wills was having difficulty with the material, she went to see Adesogan in his office for help on December 9, 1992 at 4:00 p.m., where she found him meeting with another student. He told her to come back at 5:30. When she returned, Adesogan looked up the grade on her last exam and asked her why she had done so poorly. Wills told him she had a lot of things going on at home and that she had not been eating. He sent her off to get something to eat and told her to come back at 6:30 since there was no way to study chemistry on an empty stomach. When she returned at 6:30 and found the building locked, she called up to Adesogan's office. He came down, let her into the building, and they went upstairs to his office where Adesogan shut the door.
First, Adesogan asked her to join him in prayer.
The entire meeting lasted about an hour and forty-five minutes. As she was leaving, Adesogan told Wills that she should go to the small group sessions and that she should meet privately with him before the exam. Together, they would be able to "get it." Wills never went back to Adesogan's office, or to another organic chemistry class that year.
As a result of Adesogan's continuing presence on the faculty, Wills felt the need to avoid him, both on the college campus and in her workplace. She delayed enrolling in the second half of organic chemistry in an effort to distance herself from the trauma of what had happened. When Wills ultimately enrolled in the second half of organic chemistry in the spring of 1994, she discovered that Adesogan was the only professor Brown had assigned to teach the class, a fact she did not know until the day class began. Wills immediately left the class. At trial, she testified that "I probably tried to muster up some courage to go back to class at least once or twice." Other than those occasions, she did not return to the class for the rest of the semester.
In order to complete her pre-med studies, Wills had to take the second semester of organic chemistry. The University sent Wills a letter that spring offering her one of two options for the second half of the organic chemistry class. She could request a grade option change for the course, which would allow her to take a pass in the course rather than a letter grade. As a pre-med student, however, she was advised to first discuss this option with one of the deans. Or, as the letter said, she could "cut her losses," take an incomplete in the course and take the class again in summer school, the tuition for which would be waived. The school also offered to write her a letter that would "contextualize" the difficulties she had experienced. Wills completed the second semester of organic chemistry in summer school.
On these facts, I conclude that a reasonable jury could find that: (1) Adesogan subjected Wills to severe sexual harassment;
The existence of a hostile environment, however, does not necessarily subject an educational institution to liability under Title IX. Liability only attaches where (1) the educational institution has actual notice of the alleged discrimination, see Gebser, 118 S.Ct. at 1999, and (2) the school's response to the discrimination was "clearly unreasonable in light of the known circumstances." Davis, ___ U.S. at ___, 119 S.Ct. at 1674. When the educational institution "does not engage in the harassment directly, it may not be liable for damages unless its deliberate indifference subjects its students to harassment. That is, deliberate indifference must, at a minimum, cause the students to undergo harassment or make them liable or vulnerable to it." Id. at 1672 (citations and quotation marks omitted). I must therefore examine the issues of notice and deliberate indifference.
The record is clear that Wills filed a written complaint charging Adesogan with sexual harassment. That written complaint was submitted to the Provost of Brown University, who was charged with investigating allegations of sexual harassment. Wills also met personally with the Provost. Thus, Wills informed an official at Brown, with the authority to address the alleged discrimination and to institute corrective measures, of the assault by Adesogan. See Gebser, 118 S.Ct. at 1999. The record also contains correspondence between Wills and the Dean of the College, which indicates that the school would accommodate Wills's desire to take an incomplete in organic chemistry. This correspondence suggests that Wills gave notice to the University officials in 1992 that she was unable to continue with her organic chemistry studies because of her experiences with Adesogan. Further, in Wills's "Motion to Determine in Advance of Trial the Admissibility of Defendant's Subsequent Acts," she claimed that Brown "was aware that she was continuing to experience emotional and academic difficulties as a result of Adesogan's assault upon her in 1992." Moreover, in a pre-trial conference, Wills's counsel claimed that Wills's name appeared in more than fifteen documents relating to the '93/'94 time frame which indicated that Brown was aware that Wills was continuing to experience significant difficulties at school. At trial, the Dean of the College testified that in the spring of 1994 Wills came to her because of difficulty with the second half of organic chemistry.
In Gebser, the school district had received complaints from parents that the teacher involved in a sexual relationship with the student was using inappropriate and sexually explicit language in his class. The Supreme Court rejected the argument that such complaints met the notice requirement of Title IX. "That [notice] . . . consisted of a complaint from parents of other students charging only that [the teacher] had made inappropriate comments during class, which was plainly insufficient to alert the principal to the possibility that [the teacher] was involved in a sexual relationship with a student." Gebser, 118 S.Ct. at 2000. Contrary to the Gebser scenario, Wills's report to Brown of the sexual assault by Adesogan, of her inability to continue with the study of organic chemistry in the fall of 1992, and of subsequent emotional and academic difficulties she was having because of the assault by Adesogan, was not "plainly insufficient" to alert Brown to the existence for Wills of a hostile educational environment that altered educational conditions for her at Brown. See id. at 1999 (the institution must have "actual knowledge of discrimination in the recipient's programs"). Moreover, there is evidence that Brown knew of Adesogan's assaults on other women students at Brown before Wills attempted to take the second half of organic chemistry in the spring of 1994. Accordingly, the next issue is whether Wills
3. Deliberate Indifference
Once the institution is placed on actual notice of sex discrimination, the institution is given an "opportunity to rectify any violation." Gebser, 118 S.Ct. at 1999. If the response is adequate, the institution satisfies its obligations under Title IX. See id. Only where the institution's response amounts to "deliberate indifference to discrimination," id., or "is clearly unreasonable in light of the known circumstances," Davis, 119 S.Ct. at 1674, will liability attach. This requirement comports with the administrative enforcement scheme for Title IX which contemplates action only when the "official who is advised of a Title IX violation refuses to take action to bring the recipient into compliance. The premise, in other words, is an official decision by the recipient not to remedy the violation." Gebser, 118 S.Ct. at 1999. By requiring the plaintiff to prove that the institution's response was deliberately indifferent, there is no "risk that the recipient [of federal funds] would be liable in damages not for its own official decision but instead for its employees' independent actions." Id.
Only "known circumstances" inform what can be considered a "clearly unreasonable" response. Davis, ___ U.S. at ___, 119 S.Ct. at 1674. Thus, the adequacy of a school's response may change with an increase in the school's knowledge of the circumstances of discrimination. In a case such as this, Brown might not be liable for Adesogan's individual act of sex discrimination (the sexual assault on Wills) because of a lack of notice of any prior misconduct by Adesogan. Moreover, its initial response to a first complaint of misconduct from Wills might be adequate for the purpose of the Gebser and Davis analysis. However, what was an adequate response to a single complaint of sex harassment may become "clearly unreasonable" when the school is placed on notice by additional complaints or other pertinent information. See, e.g., Davis, ___ U.S. at ___, 119 S.Ct. at 1674 (noting that the petitioner might be able to show that the school subjected her to discrimination by failing to respond to complaints of misconduct by both the petitioner as well as other female students). Accordingly, in the context of the hostile environment claim in this case, Wills must demonstrate that Brown's response was deliberately indifferent to the hostile educational environment created for her by Adesogan's assault and continuing presence in the classroom in light of the notice the school received of Wills's ongoing problems with Adesogan's presence and reports from other students of Adesogan's misconduct.
In response to Wills's complaint, the Provost and the Dean of Faculty met with Adesogan who admitted that he had pulled Wills onto his lap, hugged her, and perhaps touched her breast accidentally. The Provost sent Adesogan a letter of reprimand, condemning his behavior and placing him on probation. The Provost warned that "a second incident of unacceptable behavior will constitute grounds for immediate dismissal." However, in the Provost's deposition, he acknowledged a memorandum from the Dean of the Faculty to all Department Chairs and Directors of Programs, issued in September of 1992, summarizing the University's policy prohibiting members of the faculty from engaging in acts of sex discrimination against students. According to the memorandum, "a faculty member or teaching assistant violating the policy will be subject to immediate suspension and/or dismissal." Approximately two months after Wills's complaint about the sexual assault, members of the chemistry department recommended that Adesogan be retained for the next academic year, notwithstanding his "mistakes," and that he be given a raise. Provost Rothman accepted the recommendations and reappointed Adesogan, awarding him a raise.
In January 1994, Amy Sanford informed the Assistant Dean that Adesogan had hugged and kissed her on a number of occasions in the fall of 1993. Although Sanford did not file a formal complaint, the Assistant Dean did report the allegations to the Dean of the College. No action was taken and Adesogan remained in the classroom. In fact, as already noted, he was the only professor teaching the second half of organic chemistry in the spring of 1994, a gateway course for medical school which Wills had to take. Brown took no further action against Adesogan until March of 1994 when it received complaints from six female students in a one week period that he had assaulted them.
On these facts, I cannot say as a matter of law that Wills could not persuade a reasonable fact-finder that Brown's decision to keep Adesogan on the faculty and in the classroom until March 1994 reflected deliberate indifference to a hostile environment that altered the conditions of Wills's education at Brown. In reaching this conclusion, I am not suggesting that an educational institution, after verifying a claim of sexual harassment by one of its teachers, must terminate that teacher's employment in order to avoid Title IX liability. Cf. Davis, ___ U.S. at ___-___, 119 S.Ct. at 1673-74. The adequacy of the institution's response, assessed within the rubric of deliberate indifference, will depend on a myriad of factors relating to the nature of the harassment, its duration, the roles of the harasser and the victim before and after the harassment, the nature of their continuing contact, other acts of misconduct by the harasser known to the institution, and the conditions altered by the continuing presence of the harasser.
In this case, a jury never considered this myriad of factors because the district court took an unduly restrictive view of hostile environment discrimination, believing that only a second assault by Adesogan on Wills or some other form of direct harassment would constitute such an environment. The court was unwilling to consider that a hostile environment could exist on the basis of other factors—in this case, the response of Wills to the sexual assault and the continued presence of the harasser in the classroom who, because of his presence, denied Wills a benefit of her education at Brown because of her sex. Title IX protects individuals from such discriminatory practices carried out by the recipient of federal funds. See Gebser, 118 S.Ct. at 1997. Wills contends that Brown, through its deliberate indifference, was responsible for that denial of an educational benefit because of her sex. The district court wrongly precluded her from presenting this claim to a jury. We should correct that error.
864 F.2d 881, 901 (1st Cir.1988). On review, however, we must apply the new standard for institutional liability set forth in Gebser v. Lago Vista Independent School District, 524 U.S. 274, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998). See Harper v. Virginia Dep't of Taxation, 509 U.S. 86, 97, 113 S.Ct. 2510, 125 L.Ed.2d 74 (1993) (when the Supreme Court applies a rule of federal law to parties before it, the rule is the controlling interpretation of federal law and must be given full retroactive effect in all cases still open on direct review and as to all events, regardless of whether such events predate or postdate the announcements of the rule). The new standard of liability set forth in Gebser is a more exacting one for establishing institutional liability. Although it may seem anomalous to suggest remanding for a new trial in a case that did not succeed with a less exacting standard of liability, there is no anomaly. Wills did not lose on her continuing presence claim of liability because of the proof required to establish that liability. She lost because she was not permitted to present that claim of liability to the jury.
"That reference to Meritor was made with regard to the general proposition that sexual harassment can constitute discrimination on the basis of sex under Title IX, an issue not in dispute here."
Gebser, 118 S.Ct. at 1995 (citation omitted). I read this statement in Gebser to mean that, although the Supreme Court did not intend to import standards of liability from Title VII case law into Title IX, Title VII cases remain instructive when considering the nature of sex discrimination under Title IX. I therefore look to Title VII cases for guidance in considering Wills's claim of hostile environment discrimination against Brown.