Johnson v. Galen Health Institutes, Inc., CIV.A.3:02CV-243-H.

• Court: United States District Courts. 6th Circuit. United States District Court of Western District of Kentucky
• Writing for the Court: Heyburn
• Citation: 267 F.Supp.2d 679
• Parties: Wanda JOHNSON, Plaintiff, v. GALEN HEALTH INSTITUTES, INC. d/b/a The Health Institute of Louisville, Defendant.
• Docket Number: No. CIV.A.3:02CV-243-H.,CIV.A.3:02CV-243-H.
• Decision Date: 16 June 2003

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267 F.Supp.2d 679 Wanda JOHNSON, Plaintiff,
v.
GALEN HEALTH INSTITUTES, INC. d/b/a The Health Institute of Louisville, Defendant. No. CIV.A.3:02CV-243-H. United States District Court, W.D. Kentucky. June 16, 2003.

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Elizabeth Nugent Monohan, Kathryn A. Quesenberry, Woodward, Hobson & Fulton, Louisville, KY, for defendant.

Sean Ragland, Bolus & Ragland, Louisville, KY, for plaintiff.

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MEMORANDUM OPINION

HEYBURN, Chief Judge.

Plaintiff Wanda Johnson alleges that Defendant Galen Health Institutes, Inc. d/b/a the Health Institute of Louisville ("HIL") violated Title IX of the federal Civil Rights Act of 1972, which prohibits gender discrimination in federally funded educational institutions.¹ First, under § 901, she asserts that HIL discriminated against her by exhibiting deliberate indifference to known sex discrimination.² Second, Johnson asserts that her expulsion amounts to retaliation also prohibited by § 901. Defendant HIL moved for summary judgment, arguing that all of Johnson's theories fail. This case requires the Court to consider several novel legal questions in light of the Supreme Court's recent opinions in Gebser v. Logo Vista Indep. School Dist, 524 U.S. 274, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998), and Alexander v. Sandoval, 532 U.S. 275, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001), delineating the tests for sexual discrimination under Title IX and implied private rights of action, respectively.

After carefully considering all issues, the Court holds that Johnson has not adequately pled the hostile environment aspect of her sexual discrimination claim under Title IX and that, furthermore, the quid pro quo element of her claim also fails because she has not shown that HIL had notice of the activity. On the other hand, the Court concludes that the Department of Education has reasonably construed § 901 of Title IX to forbid retaliation to the extent that this prohibition is premised on opposition to intentional discrimination. This prohibition is therefore enforceable via the existing implied private right of action under that section. The Court need not analyze whether a separate implied private right of action exists and Plaintiffs claim for retaliation may proceed.³

I.

The facts in this case, although somewhat disputed at critical points, are relatively straightforward. Plaintiff Wanda

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Johnson is a 44 year-old woman and a former student at the Health Institute of Louisville ("HIL"). During October 2000, she enrolled in HIL to complete the academic requirements to become a licensed practical nurse. By the summer of 2001, when Johnson began her third quarter, she took a month-long class with Nurse Instructor Donte Wheat. The course included a weekly three-hour classroom lecture and one day of clinical work at Kosair Children's Hospital ("Kosair").

During this month, Johnson claims Wheat made several comments and physically touched her in ways that made her exceedingly uncomfortable and unable to focus on her education. The specifics of her claim are important. First, Johnson says that on the days she worked at Kosair, Wheat required the students to sit with him in the cafeteria. She says that each day, she sat down first and he would come sit next to her. Allegedly, he would press his leg up against the side of hers under the crowded table. This happened on at least four occasions. She says, she moved her leg away and he would try and scoot over to touch her again. Similarly, she alleges that once while they were on an elevator, Wheat pressed the front of his body against her back. Second, Johnson claims that several of Wheat's comments in class were entirely inappropriate. She says he "almost all the time" referred to breasts as "boobies" and "cha-chas," the buttocks as the "ass," and at least once called the penis "dick." Johnson says this was offensive and degrading to her. These remarks occurred during the twicea-week lectures. Third, she alleges that on one occasion, Johnson was demonstrating electrocution therapy and asked the class where the human body would most strongly feel the shock. Students responded that it would be felt by the hands, the feet, and other extremities. Wheat apparently told them they were all wrong and said the correct answer was "the dick" and said that the thought of that put him in pain.

Furthermore, Johnson alleges that on the last day of her' clinical at Kosair, Wheat sexually propositioned her. She says that she made a mistake while assessing a patient's blood pressure and that this incited Wheat's alleged bad temper. He apparently exclaimed, "What makes you think you have the luxury of making mistakes?" He then reached for her arm, put one hand on her elbow and another on her shoulder. She claims she turned away from him and he reached across with one arm to turn her back. She responded, "I'm not interested." He replied "That's the wrong answer to give on the last day of clinical." It is undisputed that he failed her. At her subsequent evaluation meeting, Wheat told her she failed because she gave the wrong answer to "one question." When she asked which one, he responded, "You know what question it is." Additionally, it also appears that Wheat initially gave Johnson a satisfactory evaluation but then later changed it after this event. Wheat vehemently disputes Johnson's interpretation of this incident and contends he never sexually propositioned her.

Shortly after these events, for reasons not entirely clear, Wheat left HIL. Johnson contends Wheat left because he was frustrated by the horrible evaluations students gave him. Wheat has not provided a response. In any event, HIL says that Johnson allegedly began circulating rumors that Wheat left because she filed a complaint against him with the Kentucky Commission on Human Rights ("KCHR"). Johnson says the KCHR told Johnson not to discuss her complaint and that she did not circulate rumors. Somehow, though, it appears that it was common knowledge among Johnson's classmates that Johnson

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had taken some form of action against Wheat.

When HIL President Michael Hendricks learned about these rumors, he called Johnson to his office for a meeting. At that meeting Johnson told Wheat that she had filed charges against Wheat with the Kentucky Commission for Human Rights ("KCHR"), but refused to tell him what Wheat had allegedly done. Hendricks said KCHR had not contacted him and that he was concerned she was instead spreading rumors because Wheat failed her. Hendricks asked Johnson to bring him proof that she complained to KCHR or she would be subject to dismissal for dishonesty under HIL's Code of Conduct. Because she allegedly never provided such documentation, HIL held a Code of Conduct hearing and expelled Johnson for dishonesty.

Johnson's account is quite different. She claims that after Wheat failed her, she first called the police and said she was being sexually harassed. Johnson says she did not place the phone call because she received a failing grade, but because she knew she had to take another class with Wheat as a result of the failure and she wanted him to stop his derogatory behavior. The police put her in touch with the Rape and Crisis Information Center. She says the Center instructed her she was entitled to counseling, although she did not pursue it. The Center also told her she could contact the KCHR.

After receiving this advice, Johnson claims that she did in fact report Wheat to the KCHR before her initial meeting with Wheat and completed an official questionnaire detailing the events as they unfolded. She also voiced her concern, in the form of a phone call to the state's Board of Nursing. It is unclear what came of this action. The KCHR however, did respond to Johnson's complaint, ultimately determining that it lacked jurisdiction over schools. Officials at KCHR told her they would forward her complaint to the state's department of education.

Plaintiff says that when Hendricks called her in to discuss the rumor he was defensive and said Mr. Wheat was not violent, that Wheat would go after her financially, and that she had "better be sure" she was telling the truth in making her allegations. She further told Hendricks that KCHR told her not to discuss the details of her complaint with anyone and that she could not discuss it with him. In response, she says Hendricks requested proof that she had filed a complaint with KCHR and said he would expel her if it turned out she was lying. She says she tried to get this information immediately, but that the KCHR did not typically provide additional information on complaints, and was reluctant to do so in this case. As a result, she says, it took several weeks for her to get any proof.

In response to this request, some time before the Code of Conduct Board met, Johnson says she provided Hendricks with a letter from the Commission indicating that she attempted to file a charge against Wheat. This letter informed Hendricks that the Commission took the position that it did not have jurisdiction over the matter and thus could not have accepted a harassment charge against Wheat from Plaintiff. This letter did not say, however, as Hendricks subsequently told Johnson he really wanted, that Johnson filed the claim on a specific date before the initial August 21 meeting where Johnson told Hendricks she had filed charges. It is unclear whether Hendricks initially told Johnson if this letter was sufficient; she claims he gave her the impression that it was enough. Hendricks later told her, however, that the letter made no mention of sexual harassment and did not confirm she filed the

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complaint prior to their meeting. It is unclear whether the Code of Conduct Board took this into consideration when it expelled her.⁴

II.

In a series of decisions over the last 25 years, the Supreme Court has outlined the contours of Title IX liability. Beginning with its 1979 decision in Cannon v. University of...