Foster v. Bd. of Regents of the Univ. of Mich.

• Citation: 982 F.3d 960
• Decision Date: 11 December 2020
• Docket Number: No. 19-1314,19-1314
• Parties: Rebecca FOSTER, Plaintiff-Appellant, v. The BOARD OF REGENTS OF the UNIVERSITY OF MICHIGAN; University of Michigan; Alison Davis-Blake, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

982 F.3d 960

Rebecca FOSTER, Plaintiff-Appellant,

v.The BOARD OF REGENTS OF the UNIVERSITY OF MICHIGAN; University of Michigan; Alison Davis-Blake, Defendants-Appellees.

No. 19-1314

United States Court of Appeals, Sixth Circuit.

Argued En Banc: October 7, 2020

Decided and Filed: December 11, 2020

SUTTON, Circuit Judge.

Rebecca Foster suffered peer-on-peer sexual harassment while enrolled in the University of Michigan's Executive MBA program. At issue in this Title IX case is whether the University was "deliberately indifferent" to her plight. Davis v. Monroe Cnty. Bd. of Educ. , 526 U.S. 629, 647, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999). It was not. At each stage, the University ratcheted up protections for her: from a no-contact order after the first complaint to a requirement that the harasser stay in a separate hotel for the program's last three-day session to a removal from the third day of the session to an order that he not attend graduation. That does not constitute deliberate indifference as a matter of law, and accordingly we affirm the district court's summary judgment decision in favor of the University.

I.

The University of Michigan runs an MBA program for business executives. Students attend classes roughly one three-day weekend a month at a hotel in Los Angeles. In August 2012, the program welcomed a cohort of 40 professionals for that year's new class, all slated to graduate in May 2014.

Toward the end of the program, on March 13, 2014, the University received a call from one of the students, Rebecca Foster, who reported that another student had harassed her. Foster filed an official complaint and submitted evidence of the harassment: emails, texts, and social media posts.

The University began an investigation. It interviewed Foster, who described her experience with the harasser. The two became friends through the program. In late 2013, the harasser, already married, began expressing romantic interest in Foster. During the October 2013 residency, he began delivering morning coffee to her hotel room. At first Foster refused, but she eventually allowed him to come in and have coffee with her. During the November residency, he told her that he "kind of love[d] her," and she "clearly" responded that she wasn't romantically interested in him. R.48-10 at 4. During the December residency, when he said he was "in love with her," she responded, "I do have feelings for you. But it's because we're friends." Id.

The harasser initiated "unwanted contact" with Foster. R.44-4 at 7. At the December residency, he "grabbed her butt" as she walked away from an elevator. R.48-10 at 4. When a group of students, including Foster and the harasser, went to a Michigan football game, the harasser rubbed her leg. Days after the game, Foster, the harasser, and two others went to the Griffith Observatory, where the harasser, without invitation, kissed her on the cheek.

Things escalated during the weeklong residency in January 2014. On January 6, Foster, "tired and worn down," kissed the harasser for 10 seconds in her hotel room. R.48-10 at 5. When he delivered coffee on January 8, she asked him to leave, but he instead "crawled into [her] bed" and tried to remove her clothes. Id. She got out of bed, went into the bathroom, and undressed to shower. He came into the bathroom while she was naked and pulled down his pants. She told him to leave, and he did. On January 10, he tried to kiss her while they were in his hotel room. When she rebuffed him, he "unleashed tons of hurtful texts." Id. at 6.

Foster began to "fear[ ] for [her] safety." Id. She continued to see the harasser socially but reiterated that she didn't have romantic feelings for him. After the February residency, the harasser sent a series of messages to Foster "ruminating" about his feelings. Id. at 7. The two did not interact during the March residency, but after it ended he sent her more text messages. She texted back that he was "scaring" her. Id. Feeling "overwhelmed," Foster reached out to the University. Id.

After hearing Foster's account of what had happened, the University responded the next day. It ordered the harasser not to contact Foster in any way or to retaliate against her.

The University then interviewed the harasser, who gave a different account of their relationship. In his telling, when he expressed romantic feelings to Foster during the October 2013 residency, she was "amenable to elevating [their] relationship to the sexual plane," asked him to be "patient" with her, and told him to keep their relationship a "secret." Id. at 9. During the November and December residencies, they would go on dates and engage in foreplay in their hotel rooms. They started having sex during the January residency, but she stopped the "sexual experiment" afterward. Id. at 11. During the February residency, he tried to distance himself from her, but she would always "draw [him] back in" with "provocative conversation." Id. He avoided her completely during the March residency because he was "intent upon NOT falling back" in love with her. Id. at 12. He denied engaging in sexual misconduct.

On March 29, the harasser violated the no-contact order by sending Foster a one-word text: "Really." R.48-13. Foster alerted the University, and it promised to reprimand the harasser the next day. And so it did. The harasser apologized, explained the text had been a misunderstanding, and vowed he would "not do it again." R.44-15. He did not text her again.

On March 31, the University told Foster about the safety measures it had imposed for the final residency session, scheduled from Thursday, April 3 to Saturday, April 5. It would house the harasser in another hotel. He would eat separately from the rest of the cohort and would leave the cafeteria prior to her arrival. In classes, the harasser would sit out of Foster's sight. The harasser knew that if he showed up to a social event and noticed Foster, he had to leave "immediately." R.44-16. The school also put Foster in touch with two administrators charged with monitoring the residency session and helping her as needed.

Foster sent a follow-up email expressing concern for her safety and wellbeing, explaining that she did not want to be "in the same room" as the harasser. R.44-19. The University offered additional accommodations. It assured her that she would not have to speak in front of the harasser and that her grades would not suffer. The University offered both Foster and the harasser the opportunity to complete their educations at the Ann Arbor campus instead. Each declined.

The University successfully implemented the safety measures during the Thursday session. At one point, a professor stopped the harasser from entering the dining hall while Foster ate inside. No contact as a result occurred between the harasser and Foster that day.

Upon the harasser's request, the same professor provided him with access to the hotel Wi-Fi, something he presumably lacked after the University moved him to a different hotel. Believing he had been unfairly denied dinner, the harasser sent a crude email to the faculty, though not Foster, late that night. He insisted on attending a private karaoke event that he had already arranged for the following evening for the students in the program, no matter who attended. And he invited the University to "pound sand." R.44-22 at 1.

Overnight and into Friday morning, the University considered whether to remove the harasser from the Friday morning session in view of the late-night email, but decided against it. The University told Foster not to attend the private karaoke event that the harasser had organized.

The harasser violated the no-contact order on Friday. He "got right in [Foster's] way" during a break, stood in front of the coffee table to prevent her from getting coffee, and stood in the lunchroom until Foster had to enlist one of the administrators to get her lunch. R.44-2 at 21. He also posted an offensive comment about her on his Facebook page.

After Foster notified the University about the Facebook post, it called the harasser and told him that he could not attend class the next day, the last day of the program. The harasser emailed his classmates to explain his absence. He revealed that Foster had filed a complaint against him and described their purported affair in a crude way. He also bombarded staff and administrators with a series of strange, if not unhinged, emails. The University's general counsel replied, insisting that the harasser desist from further contact with the University's staff and Foster. He added that any further violation would put the harasser's "receipt of a degree in grave jeopardy." R.48-31.

In response to the harasser's emails, the University also prohibited him from attending the MBA commencement ceremony in Ann Arbor. To make sure that he would not attend, the University contacted his lawyer and secured the lawyer's assurances that her client would comply. It also reached out to the Ann Arbor campus police force and asked them to conduct a "threat assessment" based on the harasser's recent emails. R.48-33 at 2. The officers concluded that he did not pose a danger to the safety of Foster or others. The University took one more precaution. It assigned plainclothes officers to stay near Foster and to protect her at the commencement ceremony. Foster took a measure of her own. She obtained a temporary restraining order against the harasser from a California court.

Foster requested, and received, extensions from at least one professor to complete her assignments for the program. When she reported difficulty focusing, the University permitted her to retake an exam and did not count the first try against her.

On April 29, Foster told the University that she saw a Facebook post by the harasser suggesting he would travel to Ann Arbor to attend the commencement ceremony. The University told the campus police about the message. It provided a photo of the harasser to the staff at the Executive...