Jennings v. University of North Carolina

• Citation: 482 F.3d 686
• Decision Date: 09 April 2007
• Docket Number: No. 04-2447.,04-2447.
• Parties: Melissa JENNINGS, Plaintiff-Appellant, and Debbie Keller, Plaintiff, v. UNIVERSITY OF NORTH CAROLINA, at Chapel Hill; Anson Dorrance, individually and as women's soccer coach at UNC; William Palladino, individually and as assistant women's soccer coach at UNC; Chris Ducar, individually and as assistant women's soccer coach at UNC; Bill Prentice, individually and as athletic trainer at UNC; Michael K. Hooker, individually and as Chancellor at UNC; Susan Ehringhaus, individually and as assistant to the Chancellor at UNC; Richard A. Baddour, individually and as Director of Athletics for UNC; Beth Miller, individually and as Senior Associate Director of Athletics at UNC; John Swofford, individually and as former Director of Athletics for UNC; All Defendants, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

482 F.3d 686

Melissa JENNINGS, Plaintiff-Appellant, and Debbie Keller, Plaintiff, v. UNIVERSITY OF NORTH CAROLINA, at Chapel Hill; Anson Dorrance, individually and as women's soccer coach at UNC; William Palladino, individually and as assistant women's soccer coach at UNC; Chris Ducar, individually and as assistant women's soccer coach at UNC; Bill Prentice, individually and as athletic trainer at UNC; Michael K. Hooker, individually and as Chancellor at UNC; Susan Ehringhaus, individually and as assistant to the Chancellor at UNC; Richard A. Baddour, individually and as Director of Athletics for UNC; Beth Miller, individually and as Senior Associate Director of Athletics at UNC; John Swofford, individually and as former Director of Athletics for UNC; All Defendants, Defendants-Appellees.

No. 04-2447.

United States Court of Appeals, Fourth Circuit.

Argued October 25, 2006.

Decided April 9, 2007.

ARGUED: Daniel Francis Konicek, Konicek & Dillon, P.C., Geneva, Illinois, for Appellant. Thomas J. Ziko, North Carolina Department of Justice, Raleigh, North Carolina, for Appellees. ON BRIEF: Jeffrey T. Mitchell, Konicek & Dillon, P.C., Geneva, Illinois, for Appellant. Joyce S. Rutledge, Assistant Attorney General, North Carolina Department of Justice, Raleigh, North Carolina, for Appellees; Douglas E. Kingsbery, Tharrington Smith, L.L.P., Raleigh, North Carolina, for Appellee Anson Dorrance, individually and as women's soccer coach at UNC.

Before WILKINS, Chief Judge, and NIEMEYER, WILLIAMS, MICHAEL, MOTZ, TRAXLER, KING, GREGORY, SHEDD, and DUNCAN, Circuit Judges.

Affirmed in part, vacated in part, and remanded by published opinion. Judge MICHAEL wrote the opinion, in which Chief Judge WILKINS, Judge MOTZ, Judge TRAXLER, Judge KING, Judge GREGORY, Judge SHEDD, and Judge DUNCAN joined. Judge GREGORY wrote a separate concurring opinion, in which Judge MOTZ joined. Judge NIEMEYER wrote a dissenting opinion, in which Judge WILLIAMS joined.

Judge WIDENER and Judge WILKINSON, being disqualified, did not participate in this case.

OPINION

MICHAEL, Circuit Judge.

Melissa Jennings, a former student and soccer player at the University of North Carolina at Chapel Hill (UNC or the University), claims that her coach, Anson Dorrance, persistently and openly pried into and discussed the sex lives of his players and made sexually charged comments, thereby creating a hostile environment in the women's soccer program. Jennings sued UNC, Dorrance, Susan Ehringhaus (Assistant to the Chancellor and legal counsel to UNC), and several other individuals associated with the University, alleging violations of Title IX of the Educational Amendments of 1972 (20 U.S.C. § 1681 et seq.), 42 U.S.C. § 1983, and the common law. The district court awarded summary judgment to the defendants. After considering Jennings's appeal en banc, we vacate the summary judgment on her Title IX claim, her § 1983 claim against Dorrance for sexual harassment, and her § 1983 claim against Ehringhaus for sexual harassment based on supervisory liability. The summary judgment on the remaining claims and minor procedural rulings are affirmed.

I.

Because Jennings was the non-movant in the summary judgment proceedings, we recite the facts, with reasonable inferences drawn, in her favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). UNC has the country's most successful women's soccer program at the college level. The UNC team, with Dorrance as head coach, has won the most national championships in the history of the sport. In light of this record, young women soccer players with exceptional talent covet the opportunity to play on Dorrance's team. Dorrance personally recruited Jennings while she was in high school, and she joined the UNC team at the start of her freshman year in August 1996. Jennings was one of four goalkeepers until Dorrance cut her from the team in May 1998, at the end of her sophomore year. Jennings was seventeen when she started playing for Dorrance, and he was forty-five.

Once Jennings became a member of the UNC team, she was distressed to learn that Dorrance engaged in sexually charged talk in team settings. Dorrance bombarded players with crude questions and comments about their sexual activities and made comments about players' bodies that portrayed them as sexual objects. In addition, Dorrance expressed (once within earshot of Jennings) his sexual fantasies about certain players, and he made, in plain view, inappropriate advances to another. This behavior on Dorrance's part occurred on a regular basis, particularly during team warm-up time at the beginning of practice. The sex-focused talk that Dorrance initiated or encouraged occurred at other times as well, or, as one player put it, "anytime the team was together," whether "on a plane, in a car, or on a bus, in a hotel, at practice, out of town, at events." J.A. 1066. Dorrance subjected Jennings or her teammates to sexually charged inquiries and comments in the following particulars.

In front of the entire team, Dorrance asked one player nearly every day "who [her] fuck of the minute is, fuck of the hour is, fuck of the week [is]," whether there was a "guy [she] ha[dn't] fucked yet," or whether she "got the guys' names as they came to the door or . . . just took a number." J.A. 1237-38, 1261-62. He asked a second player if she was "going to have sex with the entire lacrosse team," and advised a third, "[Y]ou just have to keep your knees together . . . you can't make it so easy for them." J.A. 1127. Dorrance frequently focused on a fourth player's sex life with questions such as whether she was going to have a "shag fest" when her boyfriend visited and whether she was "going to fuck him and leave him." J.A. 1238, 1248. The coach "direct[ed] inquir[ies]" to a fifth player about the size of her boyfriend's genitalia. J.A. 1452.

During practice Dorrance regularly commented on certain players' bodies, referring to their "nice legs," "nice rack[s]," breasts "bouncing," "asses in spandex," and "top heav[iness]." J.A. 393, 1073, 1229, 1236. Dorrance also called a player "Chuck" (her name was Charlotte) because he believed that she was a lesbian. J.A. 1228. He inquired pointedly in her presence about her sexual orientation, asking "[D]oes she not like the guys?" J.A. 1283.

Dorrance disclosed his sexual fantasies about several players. He told one player, Debbie Keller, that he would "die to be a fly on the wall" the first time her roommate, another team member, had sex. J.A. 1068. Dorrance admitted to Keller the reason for his fascination about how her roommate might react during sex: he believed the young woman "was a very sexual person by nature," yet she was a virgin who was "fighting her inner self" because she was "so religious" (a born-again Christian). J.A. 1070. Another incident in this category occurred during a water break at practice, when Jennings overheard Dorrance tell a trainer that he fantasized about having "an Asian threesome" (group sex) with his Asian players. J.A. 1284-85.

Dorrance did not limit himself to inappropriate speech. He showed overt affection—affection of the sort that was not welcomed—for one player, Keller, in front of the entire team. He paid inordinate attention to Keller, frequently brushing her forehead, hugging her, rubbing her back, whispering in her ear, dangling a hand in front of her chest, or touching her stomach. Dorrance took other undue liberties with respect to Keller. For example, during one weight-lifting session when the players were lightly clad, Dorrance called Keller over to him and walked her outside "towards the stadium, putting his arms around her." J.A. 1432. Also, one evening Dorrance telephoned for Keller at home, and one of her roommates (not a soccer player) told him that Keller was out with her boyfriend. Dorrance retorted, "What is she doing, out having sex all over Franklin Street?" J.A. 1073. Dorrance told Keller that he "couldn't hide his affection for [her]" and said that "in a lifetime you should be as intimate with as many people as you can." J.A. 1011.

Jennings listened as Dorrance focused on the sex life of one player after another.¹ Jennings sought desperately to avoid Dorrance's questions and ridicule about her personal life. She therefore tried to "stay out of [his] radar" by not participating in the discussions. J.A. 1242. She was targeted nevertheless. During a fall tournament in California at the end of Jennings's freshman season, Dorrance held one-on-one meetings with players in his hotel room to assess their performance for the season. Dorrance told Jennings that she was in danger of losing her eligibility to play soccer if her grades did not improve. In the midst of this discussion, Dorrance asked Jennings, "Who are you fucking?" J.A. 1330. She replied that it was "[n]one of his God damn business" what she did off field. J.A. 1325. As Jennings described the scene, "I was 17 when he asked me that in a dark hotel room, knee-to-knee, bed not made, sitting at one of those tiny tables." J.A. 1230. She felt acutely uncomfortable.

Jennings again found herself the target of Dorrance's sexual inquiries in a warm-up session during her sophomore year. Some of the players and Dorrance were discussing one player's weekend, called a "shag fest" by Dorrance, which ended with a young man crawling out of her window. Attention turned to Jennings, who had spent the same weekend with her boyfriend at another school. One player asked, using Jennings's nickname, "[W]ell, what about Trim'n?", J.A. 1246, and Dorrance immediately "chimed in," saying "[Y]es, what about Trim'n?" J.A. 1252. The coach wanted to know whether Jennings had "the same good weekend" as the player whose weekend he had just described as a shag fest. J.A. 1248. Dorrance thus encouraged the interrogation about personal sexual activity to "slide over" to Jennings for several minutes. J.A. 1249, 1254-55. She felt...