Cox v. Sugg

• Decision Date: 27 April 2007
• Docket Number: No. 06-2311.,06-2311.
• Citation: 484 F.3d 1062
• Parties: Sarah COX, Plaintiff-Appellee, v. B. Alan SUGG, President of the University of Arkansas, in his official and individual capacities, et al., Defendants-Appellants, University of Arkansas, et al., Defendants.
• Court: U.S. Court of Appeals — Eighth Circuit

484 F.3d 1062

Sarah COX, Plaintiff-Appellee, v. B. Alan SUGG, President of the University of Arkansas, in his official and individual capacities, et al., Defendants-Appellants, University of Arkansas, et al., Defendants.

No. 06-2311.

United States Court of Appeals, Eighth Circuit.

Submitted: December 7, 2006.

Filed: April 27, 2007.

Scott Varady, (argued), Fayetteville, AR, for appellant.

Robert L Depper, Jr., (argued), Eldorado, AR, for appellee.

Before LOKEN, Chief Judge, BEAM and RILEY, Circuit Judges.

LOKEN, Chief Judge.

Sarah Cox commenced this action against the University of Arkansas at Fayetteville and various individual defendants asserting claims under 42 U.S.C. § 1983, Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681 et seq., and state law. All the claims are based upon alleged sexual harassment by Professor Mark Cory while Cox was an undergraduate student. Defendants filed motions to dismiss or for summary judgment. The district court dismissed the Title IX claims, all damage claims against the individual defendants in their official capacities, a conspiracy claim under 42 U.S.C. § 1985, and certain tort claims against Cory. Without addressing the alternative motions for summary judgment, the court denied the Rule 12 motions to dismiss the § 1983 claims for prospective relief against the University administrators in their official capacities, the § 1983 and Arkansas constitutional damage claims and the breach of fiduciary duty claims against the individual defendants, and the tort of outrage claim against Cory. The individual defendants other than Cory appeal the district court's denial of their motion to dismiss the § 1983 damage claims on grounds of qualified immunity. We conclude that these defendants are entitled to summary judgment on the merits of all the remaining federal claims. Accordingly, we reverse with directions to sever the claims against these defendants and to dismiss the state law claims against them without prejudice.

I.

Cox's complaint alleged that in the fall of 2003, at the start of her senior year, she went to the home of Professor Cory, her faculty advisor, to write a summary of her junior year studies in France and a grant proposal. After dinner, Cory made sexual overtures, kissed Cox, undressed her, held her down on his bed, and said he wanted sex from her for the next year. Later in the fall, Cory attempted to contact Cox, which resulted in two "emotionally distressing" meetings. When Cox reported the incidents to University officials, she was told that Cory had engaged in this type of behavior with other students in the past, yet Cox was not aware of any "formal discipline" against him. She further alleged that the University "had and has policies and/or customs that tolerated, approved, condoned, and/or allowed such behavior by Cory." Cox asserted sixteen federal and state law tort claims against the University; against University President Alan Sugg, University Chancellor John White, and Professor Cory in their official and individual capacities; and against various categories of University employees named as "John Doe" defendants.

Defendants promptly filed motions to dismiss or for summary judgment. In support of their motion for summary judgment, the University and the individual defendants other than Cory submitted supporting affidavits, declarations, and documents. An affidavit by Kathryn Fairchild, the University's Grievance Officer and Assistant Director of the Office of Affirmative Action, presented the following background facts that were later recited by the district court in its order under review.

In April 2004, the father of a female student complained to the Office of Student Affairs that his daughter and at least four other female students were accusing Professor Mark Cory of sexual harassment. Fairchild responded. She asked the father to identify the students because the risk of further misconduct made prompt action important. The father declined, telling Fairchild that his daughter would contact her after the spring semester concluded in mid-May.

On May 12, Fairchild met with the student and urged her to persuade the others to come forward. Later that day, Sarah Cox contacted Fairchild. Cox accused Cory of inviting her to his home in the fall of 2003 to work on a paper and then undressing her and getting into bed with her. Cox told Cory she did not want to have sex and left. Cox claimed that contacts with Cory after this encounter, including his proposal that they go away for a weekend together, made her uncomfortable. Fairchild asked Cox why she had not previously reported Cory's behavior. Cox replied "that men reacted to her in this way all the time." Fairchild advised University administrators of Cox's allegations. One week later, Cory was forced to resign.

Fairchild further averred that her duties included investigating all complaints of sexual harassment. Prior to the first student's complaint on May 12, she "had never received any student complaints of sexual harassment against Dr. Cory." Likewise, University President Sugg and Chancellor White declared that neither Cox nor any other student had ever reported sexual harassment by Cory until just before he was asked to resign.

The documents submitted in support of the motion for summary judgment included the University's lengthy written policy prohibiting sexual harassment of students, faculty, staff, and visitors. The policy defined sexual harassment as including unwelcome sexual advances or requests for sexual favors when submission to the request "is made either implicitly or explicitly a term or condition of . . . academic status or advancement," or when the conduct unreasonably interferes with an individual's academic performance. The policy further explained:

Any student ... who has experienced or witnessed sexual harassment is strongly urged to report it. The university must know about incidents of sexual harassment in order to stop them, protect victims, and prevent future incidents.

The policy advised students to report allegations of sexual harassment to the University's complaint officer and instructed the complaint officer to investigate "every allegation." Fairchild averred that the policy was published in the University's undergraduate student, graduate student, and faculty handbooks for the 2003-2004 school year, and on its web page.

Cox responded to the summary judgment motion with affidavits by herself and by another female student who alleged sexual harassment by Professor Cory. Cox averred that she is currently a law student at the University; that Cory's sexual advances in the fall of 2003 were non-consensual; that she has never seen the sexual harassment policy and did not recall receiving a student handbook; that she did not know she could report sexual harassment; that she was worried her allegations would not be believed; and that the University did not tell students "with regularity" how to report sexual harassment. Therefore, "as far as the students are concerned, the University simply gave sexual harassment lip service."

II.

This is an appeal from the denial of qualified immunity, a limited exception to the final judgment rule designed to spare government officials who are entitled to qualified immunity the burden and expense of litigation. See Behrens v. Pelletier, 516 U.S. 299, 305-08, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996). However, to be appealable, an otherwise interlocutory order must address the collateral issue of qualified immunity. If the district court instead enters an interlocutory order that ignores a timely claim of qualified immunity, our proper course is to remand with instructions to consider the qualified immunity issue. See Schatz Family ex rel. Schatz v. Gierer, 346 F.3d 1157, 1160 (8th Cir.2003). Here, after reciting background facts contained in the parties' summary judgment papers, the court's order denied defendants' motion to dismiss on the ground of qualified immunity, noting that the issue "might be better addressed in a summary judgment motion" after discovery. It was error not to treat defendants' alternative motion as one for summary judgment, see Fed.R.Civ.P. 12(c), particularly when Cox submitted a factual response and did not assert a need for more discovery before the summary judgment motion could be decided, as Rule 56(f) expressly allows. Because the district court addressed the merits of the qualified immunity issue, we have jurisdiction to review its resolution of that issue. See Jones v. Coonce, 7 F.3d 1359, 1365 (8th Cir.1993).

III.

Qualified immunity protects "government officials performing discretionary functions . . . from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). The first step in the qualified immunity analysis is to determine "whether the plaintiff has alleged a deprivation of a constitutional right at all." County of Sacramento v. Lewis, 523 U.S. 833, 841 n. 5, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998).

Cox alleges that she is entitled to damages and injunctive relief under § 1983 because President Sugg, Chancellor White, and the John Doe defendants "tolerated, allowed, permitted, condoned, and/or approved of inadequate policies, procedures, customs, and/or usages that resulted in" Professor Cory engaging in sexual harassment that violated her constitutional rights under the Fourteenth Amendment. To avoid summary judgment in favor of a particular defendant on this § 1983 claim, Cox must make an adequate showing of "(1) violation of a constitutional right, (2) committed by a state actor, (3) who acted with the requisite culpability and causation to violate the constitutional right." Shrum ex rel. Kelly v. Kluck, 249 F.3d 773, 777 (8th Cir.2001).

President Sugg, Chancellor White,...