Escue v. Northern Ok. College

Decision Date14 June 2006
Docket NumberNo. 04-6310.,No. 04-6270.,04-6270.,04-6310.
Citation450 F.3d 1146
PartiesCallie ESCUE, Plaintiff-Appellant, v. NORTHERN OKLAHOMA COLLEGE, a political subdivision of the State of Oklahoma; and Richard Finton, in his individual and official capacities, Defendants-Appellees.
CourtU.S. Court of Appeals — Tenth Circuit

N. Kay Bridger-Riley, Bridger-Riley Bailey & Associates, P.C., Tulsa, OK, for Plaintiff-Appellant Callie Escue.

Gregory Thomas Metcalf, Assistant Attorney General, (Stefan K. Doughty, Assistant Attorney General, on the brief) Oklahoma City, OK, for Defendant-Appellee Northern Oklahoma College, and for Defendant-Appellee Richard Finton in his official capacity.

Kenneth R. Coe, Oklahoma City, OK, for Defendant-Appellee Richard Finton in his individual capacity.

Before HENRY, ANDERSON, and O'BRIEN, Circuit Judges.

HENRY, Circuit Judge.

Callie Escue, formerly a student at Northern Oklahoma College (NOC), alleges that Richard Finton, her professor in spring 2002, sexually harassed her, and that NOC failed to supervise and investigate adequately Mr. Finton in this, and other prior incidents. The district court granted NOC's motion for summary judgment, and a jury found in favor of Mr. Finton. Here, Ms. Escue appeals the district court's grant of summary judgment to NOC. She also appeals the denial of her motions for judgment as a matter of law and a new trial with respect to her claims against Mr. Finton. Because we hold that (1) NOC did not have prior notice that Mr. Finton presented a substantial risk to its students, (2) its response to Ms. Escue's harassment was not clearly unreasonable, and (3) the jury's verdict in favor of Mr. Finton was not against the weight of the evidence, we affirm the district court.


In the spring semester of 2002, Ms. Escue was enrolled in two classes taught by Mr. Finton, a tenured faculty member, at NOC. Ms. Escue contends that during this time, Mr. Finton touched her inappropriately without her consent on multiple occasions and made numerous sexual comments, some about her in front of her peers, and others to her while they were alone. She makes three claims against Mr. Finton with respect to these allegations: (1) that his conduct violated her due process and equal protection rights and is actionable under 42 U.S.C. § 1983; (2) that he assaulted and battered her in violation of state law; and (3) that he intentionally caused her emotional distress in violation of state law. Mr. Finton admitted to some of the allegations, but contested others. Because of disputes over material facts, the district court denied Mr. Finton's motion for summary judgment.

At trial, Mr. Finton admitted to having made comments about the size of Ms. Escue's breasts on three or four separate occasions, but denied a number of Ms. Escue's other allegations: he testified that he did not look down her pants or her blouse; that he did not tell her about any sexual dreams; that he did not slap her buttocks; that he did not tell her sexual jokes; that he did not tell her that he wanted to fondle her breasts; and that he did not tell her he would use a condom if they had sex. He also admitted to giving Ms. Escue a "sternum adjustment" while lifting up her shirt, in his office with the door locked, but testified that he did not touch her breasts during the adjustment incident, and that she consented to whatever contact occurred. Aplt's App. vol. VI, at 1171 (testifying that a "sternum adjustment" "can realign your ribs on the front side of the sternum" by applying pressure to the sternum and the shoulders).

Thomas Meyer, Ms. Escue's debate partner and close friend, testified during trial about incidents that he had witnessed between Ms. Escue and Mr. Finton: he had heard Mr. Finton make a number of comments about Ms. Escue and her breasts, and had also seen Mr. Finton pull her shirt so that he could look down her blouse. Mr. Meyer also testified that Mr. Finton sometimes had given massages and adjustments to other students, including himself, and that Ms. Escue twice had gone to Mr. Finton's office to give Mr. Finton a back massage. Mr. Meyer told the jury that he had seen Ms. Escue show tattoos to Mr. Finton that required her to lift part of her clothing. He testified that, after hearing about the sexual harassment claims, he had been "furious" and agreed that he had told a friend that he believed "whatever happened was as much Callie's fault as Finton's." Id. vol. V, at 1025.

Ms. Escue also testified during the jury trial. She described instances of inappropriate contact, and maintained that during the sternum adjustment, Mr. Finton had fondled her breasts. Id. vol. VI, at 1265 (Mr. Finton pulling down her shirt), 1267 (describing "jokes" and comments made by Mr. Finton), 1274 (Mr. Finton looking down her pants and moaning), 1277 (Mr. Finton fondling her breasts in his office during the adjustment). During her testimony, she admitted that she had sent a Valentine's Day card to Mr. Finton, that she did not object to the sternum adjustment and had voluntarily laid on the floor of his office, and that after the sternum-adjustment incident in his office, she had remained in his office and smoked a cigarette with him.

Shortly after the sternum-adjustment incident in Mr. Finton's locked office, Ms. Escue's father became involved and together, Ms. Escue and her father contacted NOC's president, Dr. Joe Kinzer. The next day, they met in person with Dr. Kinzer to discuss the allegations and to express Ms. Escue's concern that her allegations remain confidential. Her concerns about confidentiality were founded because another student had already told Mr. Finton that Ms. Escue had planned to inform NOC officials about her allegations. That night, after meeting with Dr. Kinzer, Ms. Escue decided to stay at her parents' home because Mr. Finton had gone to her dormitory to try to find her; she had not been there and may have been in the meeting during his visit. NOC officials met with Mr. Finton the day after meeting with Ms. Escue and her father, and informed him of the allegations. After this point, Ms. Escue and Mr. Finton had no further contact.

NOC decided to transfer Ms. Escue out of one of Mr. Finton's classes, permitted her to finish the other class as of March with her then-current grade, and began an investigation into her allegations. After its investigation, NOC decided that it would terminate its relationship with Mr. Finton at the end of the spring semester; although he had planned to retire at the end of the spring or summer semester, he had been slated to teach a class in the summer, and possibly later, on an adjunct basis.

Prior to the alleged harassment in spring 2002, NOC had been aware of other sexual incidents involving Mr. Finton and students. In 1993, two students had lodged sexual harassment complaints against Mr. Finton. One student reported that he had called her "butch" on multiple occasions and another alleged that he had slapped her buttocks once while she boarded a bus. In response to these two students' allegations, Dr. Kinzer verbally reprimanded Mr. Finton and referred the matters to a dean at NOC. Mr. Finton admitted to calling one student "butch" and promised to stop, but he stated that he had only touched the other student by accident with his elbow. No one at NOC placed any record of the complaints or reprimand in Mr. Finton's personnel file and no action was taken against Mr. Finton as a result of these allegations.

Then, in 1995 or 1996, Dr. Kinzer received an anonymous letter that reported Mr. Finton had dated an unnamed student. When confronted, Mr. Finton told Dr. Kinzer that he had dated a student in 1991-1992. Mr. Finton was again verbally reprimanded, but Dr. Kinzer did not record any information about this in Mr. Finton's personnel file. Later, during his deposition, Mr. Finton explained that the person referenced in this letter had been an older, non-traditional student who had not been in any of Mr. Finton's classes. During his deposition, Mr. Finton also admitted to a second relationship with another older, non-traditional student who had been in one of his classes. Both Dr. Kinzer and Mr. Finton testified during their depositions that NOC had no knowledge of this second relationship.

Based on these prior incidents and what Ms. Escue alleged was an inadequate investigation into her allegations, she made two claims against NOC: (1) that it negligently supervised Mr. Finton in violation of state law, and (2) that it violated Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681-1688, by failing to remedy an abusive and/or hostile educational environment. After receiving cross-motions for summary judgment from Ms. Escue and NOC, the district court granted summary judgment to NOC with respect to both claims. In its order granting NOC summary judgment, the court stated that the evidence was "somewhat confusing" as to which student the letter referenced, but "the court's decision on NOC's liability would not change even if Dr. Kinzer had understood the letter pertained to a relationship between Finton and a student other than [the older, non-traditional student who had not been in any of Mr. Finton's classes]." Aplt's App. vol. IV, at 821 n. 9 (Dist. Ct. Order, filed June 30, 2004).


In this consolidated appeal, Ms. Escue challenges the district court's grant of summary judgment to NOC. She also challenges the district court's denial of her motion for judgment as a matter of law and the denial of her motion for a new trial with respect to her claims against Mr. Finton, contending the verdict was not supported by the evidence. We first consider Ms. Escue's arguments as they relate to NOC.

A. Arguments Pertaining to Defendant NOC

The district court held that there were no issues of material fact in dispute with respect to Ms. Escue's claims against NOC, that NOC did not...

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