477 F.3d 1282 (11th Cir. 2007), 04-13800, Williams v. Board of Regents of University System of Georgia

Docket Nº:04-13800.
Citation:477 F.3d 1282
Party Name:Tiffany WILLIAMS, Plaintiff-Appellant, v. BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA, The University of Georgia, Michael F. Adams, and in his official capacities as President of the University of Georgia and President of the University of Georgia Athletic Association, Inc., Vincent J. Dooley, Individually, and in his official capacity as
Case Date:February 09, 2007
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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477 F.3d 1282 (11th Cir. 2007)

Tiffany WILLIAMS, Plaintiff-Appellant,

v.

BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA, The University of Georgia, Michael F. Adams, and in his official capacities as President of the University of Georgia and President of the University of Georgia Athletic Association, Inc., Vincent J. Dooley, Individually, and in his official capacity as Athletic Director of the University of Georgia Athletic Association, Inc., University of Georgia Athletic Association Inc., et al., Defendants-Appellees.

No. 04-13800.

United States Court of Appeals, Eleventh Circuit.

Feb. 9, 2007

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Lorenzo Williams, Gary, Williams & Parenti, Fort Pierce, FL, Eric E. Wyatt,

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George W. McGriff & Associates, Atlanta, GA, Nicholas G. Dumich, George W. McGriff & Associates, Roswell, GA, for Williams.

Eddie Snelling, Jr., David E. Langford, Dept. of Law, Atlanta, GA, Edward D. Tolley, Cook, Noell, Tolley, Bates & Michael, LLP, Athens, GA, Adam Lowell Appel, Carlock, Copeland, Semler & Stair, LLP, Joyce E. Kitchens, Kitchens/New LLC, Atlanta, GA, for Defendants-Appellees.

Appeal from the United States District Court for the Northern District of Georgia.

ON PETITION FOR REHEARING

Before TJOFLAT and KRAVITCH, Circuit Judges, and JORDAN, [*] District Judge.

KRAVITCH, Circuit Judge:

We sua sponte grant rehearing in this case, vacating our prior opinion filed on March 9, 2006, published at 441 F.3d 1287 (11th Cir.2006), in its entirety and substitute the following opinion in its place. 1 While the Court reaches the same result, we address certain claims more fully.

The primary question in this appeal is whether petitioner, a student at the University of Georgia, alleged facts sufficient to withstand defendants' motion to dismiss her Title IX claim based on student-on-student sexual harassment.

Background

Here, as alleged in her complaint, 2 at approximately 9:00 p.m. on January 14, 2002, Tiffany Williams ("Williams"), then a student at the University of Georgia ("UGA"), received a telephone call from UGA basketball player Tony Cole. Cole invited Williams to his room in McWhorter Hall, the main dormitory for student-athletes on the university campus. Shortly after Williams arrived at Cole's room, the two engaged in consensual sex. Unbeknownst to Williams, Brandon Williams, a UGA football player, whom Williams did not know, was hiding in Cole's closet. Cole and Brandon had previously agreed that Brandon would hide in the closet while Cole had sex with Williams. When Cole went to the bathroom and slammed the door behind him, Brandon emerged from the closet naked, sexually assaulted Williams, and attempted to rape her.

As Brandon was sexually assaulting Williams, Cole was on the telephone with Steven Thomas, Cole's teammate, and Charles Grant, Brandon Williams's teammate. Cole told Thomas and Grant that they were "running a train" on Williams. 3 Thomas came to Cole's room, and Cole allowed Thomas to enter the room. With Cole's encouragement, Thomas sexually assaulted and raped Williams.

Williams returned to her dormitory at approximately 11:00 p.m., called Jennifer Shaughnessy, and asked Shaughnessy to come to her room. When Shaughnessy arrived, Williams was visibly upset and crying. Williams explained what had happened

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in Cole's room, and Shaughnessy told Williams that she had been raped and should call the police. Williams told Shaughnessy that she did not want to call the police because she was afraid. While Shaughnessy was with Williams, the telephone rang. The caller identified himself as Steven Thomas, and Williams immediately hung up. Thomas had never called Williams before that night. Minutes later, Thomas called again. Williams said that she was afraid to answer the telephone, therefore, Shaughnessy answered. Thomas immediately asked, "Why did you hang up on me?" When Shaughnessy said "Hello," Thomas asked, "Is Tiffany there?" Shaughnessy told Thomas that he had the wrong number, and she hung up.

Williams then called her mother, who notified UGA Police of the incident that occurred in Cole's room. UGA Police arrived at Williams's room shortly after 1:00 a.m. on January 15 and arranged for Williams to have a sexual assault exam performed. Later that same day, Williams requested that UGA Police process the charges against Cole, Brandon Williams, and Thomas. After filing her complaint with UGA Police, Williams permanently withdrew from UGA.

UGA Police conducted an investigation, as part of which, the police obtained Cole's telephone records. The records show that Cole called Williams's dorm room several times in the days immediately following the incident and Williams's withdrawal. Within forty-eight hours of the incident, UGA's Chief of Police notified UGA's Director of Judicial Programs of the incident and provided her with a written explanation. On April 17, 2002, a lieutenant from UGA Police provided the Director of Judicial Programs with additional information about the investigation. Several of the individuals who spoke with UGA Police supported Williams's allegations.

The actions of Cole, Brandon Williams, and Thomas constitute sexual harassment under the Sexual Harassment Policy of the University of Georgia. The policy applicable in January 2002, however, provided that "[s]exual harassment between students, neither of whom is employed by the University should be treated as a disciplinary matter and should be reported to the Office of Student Affairs" and not dealt with under the Sexual Harassment Policy. Cole, Brandon Williams, and Thomas were charged with disorderly conduct under UGA's Code of Conduct. Additionally, their coaches suspended them from their sports teams after an Athens-Clarke County grand jury indicted them in early April 2002. 4 A UGA judiciary panel, consisting of one staff member and two university students, held hearings almost a year after the January 2002 incident and decided not to sanction Cole, Brandon Williams, or Thomas. By the time of the hearing, Cole and Brandon Williams no longer attended UGA. Thomas left UGA in September 2003. The three also faced criminal charges, but a jury acquitted Brandon Williams, and the prosecutor dismissed the charges against Cole and Thomas.

Williams's complaint also alleges that defendants James Harrick, former head coach of UGA's men's basketball team, Vincent Dooley, Athletic Director of the University of Georgia Athletic Association ("UGAA"), and Michael Adams, President of UGA and UGAA, were personally involved in recruiting and admitting Cole

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even though they knew he previously had disciplinary and criminal problems, particularly those involving harassment of women, at other colleges.

While coaching the men's basketball team at the University of Rhode Island ("URI"), Harrick recruited Cole to attend URI. When Cole could not gain admission to URI, Harrick helped Cole gain admission to the Community College of Rhode Island ("CCRI"). Cole was eventually dismissed from CCRI after allegations that in December 1999 and February 2000 he sexually assaulted two part-time employees of the college's athletic department by groping the women, putting his hands down their pants, and threatening them when they rejected his advances. Cole pleaded no contest to criminal charges of misdemeanor trespass in connection with the two sexual assaults. 5

Furthermore, while attending Wabash Valley College ("WVC") in Mount Carmel, Illinois, Cole was dismissed from the basketball team because of disciplinary problems, including an incident in which he whistled at and made lewd suggestions to a female store clerk. Adams, Harrick, and Dooley knew of the incident when they recruited and admitted Cole. By the time Cole was dismissed from WVC, Harrick was at UGA and again recruited Cole. Because Cole did not meet UGA's standards for admission, Harrick requested that Adams admit Cole through UGA's special admissions policy. Adams is the sole decision maker when admitting an applicant under the special admissions policy. Cole was admitted to attend UGA on a full scholarship.

Finally, Williams alleges that UGA officials received suggestions from student-athletes that coaches needed to inform the student-athletes about UGA's sexual harassment policy. Despite Adams's and Dooley's duties to ensure student-athletes' compliance with UGA's policy, UGA and UGAA failed to ensure that the student-athletes received adequate information concerning UGA's sexual harassment policy applicable to student-athletes and failed to enforce the policy against football and basketball players.

Williams brought suit against: (1) UGA, the Board of Regents of the University System of Georgia ("Board of Regents"), and UGAA for violation of Title IX; (2) Adams, Harrick, and Dooley as individuals and in their official capacities as UGA and UGAA President, former head basketball coach, and Athletic Director of UGAA for violation of 42 U.S.C. § 1983; (3) UGA and the Board of Regents for violation of 42 U.S.C. § 1983; and (4) Cole, Brandon Williams, and Thomas for state law torts. She also sought "injunctive relief ordering the defendants to implement policies, and procedures to protect students like Plaintiff from student-on-student sexual harassment prohibited by Title IX."

UGA, UGAA, the Board of Regents, Adams, Harrick, and Dooley all filed motions to dismiss Williams's claims. Williams then moved to amend her complaint, adding additional factual allegations to support her claims, providing a more specific request for injunctive relief, and...

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