Gossett v. State of OK

• Decision Date: 10 April 2001
• Docket Number: DEFENDANTS-APPELLEES,No. 98-5084,PLAINTIFF-APPELLANT,98-5084
• Citation: 245 F.3d 1172
• Parties: (10th Cir. 2001) MARTY GOSSETT,, v. STATE OF OKLAHOMA EX REL. BOARD OF REGENTS FOR LANGSTON UNIVERSITY AND THE AGRICULTURAL AND MECHANICAL COLLEGES, ERNEST HOLLOWAY, PRESIDENT OF LANGSTON UNIVERSITY, CAROLYN KORNEGAY, DEAN OF THE SCHOOL OF NURSING OF LANGSTON UNIVERSITY,
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1172

245 F.3d 1172 (10th Cir. 2001)

MARTY GOSSETT, PLAINTIFF-APPELLANT, v. STATE OF OKLAHOMA EX REL. BOARD OF REGENTS FOR LANGSTON UNIVERSITY AND THE AGRICULTURAL AND MECHANICAL COLLEGES, ERNEST HOLLOWAY, PRESIDENT OF LANGSTON UNIVERSITY, CAROLYN KORNEGAY, DEAN OF THE SCHOOL OF NURSING OF LANGSTON UNIVERSITY, DEFENDANTS-APPELLEES.

No. 98-5084

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

April 10, 2001

Appeal from the United States District Court for the Northern District of Oklahoma (D.C. No. 97-CV-115-K) [Copyrighted Material Omitted]

[Copyrighted Material Omitted] N. Kay Bridger-Riley (Gregory W. Alberty, with her on the briefs), Bridger-Riley & Associates, P.C., Tulsa, Oklahoma, appearing for Plaintiff-Appellant.

David W. Lee, Lee & Gooch, P.C. (Michael Scott Fern, Oklahoma State University, Stillwater, Oklahoma, with him on the brief), appearing for Defendants-Appellees.

Before Tacha, Chief Judge, Holloway and Seymour, Circuit Judges.

Seymour, Circuit Judge.

Marty Gossett brought this action under 42 U.S.C. § 1983 and 20 U.S.C. § 1681(a) (Title IX) against the Board of Regents of Langston University, and the University President and Dean of the University School of Nursing. Mr. Gossett alleged that his involuntary withdrawal from the University's nursing program was caused by gender discrimination that violated his right to equal protection, substantive and procedural due process, and Title IX. The district court granted defendants' motion for summary judgment, ruling that Mr. Gossett had failed to present sufficient evidence to raise a jury question on his claims. We reverse and remand for further proceedings.

I.

We review the grant of summary judgment de novo, applying the same legal standard employed by the district court under Fed. R. Civ. P. 56(c). See Henderson v. Inter-Chem Coal Co., 41 F.3d 567, 569 (10th Cir. 1994). "Summary judgment is appropriate only when `there is no genuine issue as to any material fact and... the moving party is entitled to judgment as a matter of law.'" Id. In making this assessment, the court must review all of the evidence in the record and draw all reasonable inferences in favor of the nonmoving party. Reeves v. Sanderson Plumbing Prod., Inc., 120 S. Ct. 2097, 2110 (2000). The court "may not make credibility determinations or weigh the evidence," and "must disregard all evidence favorable to the moving party that the jury is not required to believe." Id.

Viewed under these standards, the record reveals the following background facts. Mr. Gossett successfully completed his first semester in the Nursing School and enrolled as a second semester student in the Fall of 1994. He did well in all of his classes that semester except for a Process II course taught by nursing instructors Kathleen Clarke and Pamela DiVito-Thomas. When Mr. Gossett began experiencing difficulty in the Process II course, he sought help and counseling from the instructors. In response to defendants' motion for summary judgment, Mr. Gossett offered evidence, which the district court rejected and which we discuss in detail below, to support his allegation that the instructors discriminated against the male students in the class and that as a result he was not given the same help, counseling, and opportunities to improve his performance as provided to women nursing students. He ultimately received a D in the class, which under Nursing School policy required his dismissal from the nursing program. His administrative grade appeal was denied, and his numerous attempts to obtain readmission were also unsuccessful.

II.

A. Title IX

Mr. Gossett brought a claim for gender discrimination under Title IX, which provides that "[n]o person... shall, on the basis of sex,... be subjected to discrimination under any education program or activity receiving Federal financial assistance." 20 U.S.C. § 1681 (a). Title IX thus prohibits gender discrimination against students enrolled in federally supported educational programs and has been construed to provide an implied cause of action to an aggrieved individual. See Murray v. New York Univ. College of Dentistry, 57 F.3d 243, 248 (2d Cir. 1995). Courts have generally assessed Title IX discrimination claims under the same legal analysis as Title VII claims. See id.; see also Roberts v. Colorado State Bd. of Agric., 998 F.2d 824, 832 (10th Cir. 1993) (Title VII is "the most appropriate analogue when defining Title IX's substantive standards") (quoting Mabry v. State Bd. of Community Colleges, 813 F.2d 311, 316 n. 6 (10th Cir. 1987)).

In this case, the district court assessed Mr. Gossett's Title IX claim under the three-part framework established for Title VII claims in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).¹ Under this familiar three-step inquiry, a plaintiff must first establish a prima facie case. The district court held that Mr. Gossett had done so by demonstrating that he belonged to a protected class, that he was qualified for his position, and that he lost the position under circumstances giving rise to an inference of discrimination. Defendants do not challenge this ruling on appeal.

The creation of a prima facie case gives rise to the presumption that the challenged action was the result of unlawful discrimination. See Greene v. Safeway Stores, Inc., 98 F.3d 554, 558 (10th Cir. 1996) (quoting St Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993)). In order to rebut this presumption, the defendant bears the burden of articulating a facially nondiscriminatory reason for the adverse action. See Reeves, 120 S. Ct. at 2106; Marx v. Schnuck Mkts., Inc., 76 F.3d 324, 327 (10th Cir. 1996). Defendants justified their decision to require Mr. Gossett to withdraw by relying upon the D grade he received in the Practice II course taught by instructors Clarke and DeVito- Thomas, pointing to the Nursing School's policy requiring a student to withdraw upon receipt of a grade of D in any class. We agree with the district court that this explanation satisfied defendants' burden of production, and that the burden therefore shifted to Mr. Gossett to establish "`that the legitimate reasons offered by the defendant[s] were not [their] true reasons, but were a pretext for discrimination.'" Reeves, 120 S. Ct. at 2106 (quoting Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981)).

A plaintiff demonstrates pretext either by showing that a discriminatory reason more likely motivated the defendant's decision or that the employer's proffered explanation is unworthy of belief. See Marx, 76 F.3d at 327-28. Evidence sufficient to raise a fact issue on whether a defendant's proffered explanation is pretextual may take a variety of forms, including evidence that the defendant treated the plaintiff differently from others who were similarly situated, which we have held is especially relevant to a showing of pretext. See E.E.O.C. v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1195 n.6, 1198-99 (10th Cir. 2000). Although Mr. Gossett attempted to make such a showing below, the district court rejected his evidence upon concluding either that it was not based on personal knowledge or that it simply fell short of demonstrating pretext.

We review evidentiary rulings at the summary judgment stage for an abuse of discretion. See In re Durability Inc., 212 F.3d 551, 555 (10th Cir. 2000). Our review of the summary judgment record in light of the applicable law convinces us that, as discussed below, the district court abused its discretion by refusing to consider at least two items of evidence that in our view preclude the grant of summary judgment for defendants.

Mr. Gossett argued in opposition to defendants' motion for summary judgment that the Nursing School had a policy of allowing instructors to give failing students a grade of "Incomplete" and providing those students extra time in which to improve their grades, and that the School applied this policy in a sexually discriminatory manner. In support of his contention, he offered undisputed evidence that the class in which he received a D was made up of twenty-four students, five of whom were men. Three of the five men failed the course, while all of the women passed. See App. at 200. In addition, Mr. Gossett presented the affidavit of Anita Leforce, a female nursing student enrolled during the Fall 1994 semester in a Practicum I class. She stated that at the end of the semester she was informed by her instructor that she had not successfully completed the class and would be given a D on her transcript. Ms. Leforce, however, was given the opportunity to complete seven additional weeks of work in the course, and received a C rather that a D. The district court held the probative value of this affidavit negligible because Ms. Leforce was enrolled in a different course taught by a different instructor. We disagree.

It is true that in the context of allegations of discriminatory discipline, this court has looked to whether the plaintiff and others with whom he seeks to compare himself worked under the same supervisor. See, e.g., Aramburu v. Boeing Co., 112 F.3d 1398, 1404, (10th Cir. 1007). When, as here, the plaintiff contends he is the victim of the discriminatory application of a facility-wide policy and has other evidence of that policy, however, we have specifically held that the failure of the plaintiff and affiant to share the same supervisor does not preclude the consideration of that evidence of disparate treatment. See Horizon/CMS Healthcare, 220 F.3d at 1198 n.10 ("Defendant, however, has not demonstrated how the `same supervisor' test is legally relevant to the inquiry of whether [plaintiff has] been the victim[] of an allegedly discriminatory company-wide policy. Thus, the fact that [plaintiff] and the affiants did not share the same supervisor does not preclude consideration of [affiants'] evidence.") We believe this holding is equally applicable to Mr. Gossett's allegation that the...