Litman v. George Mason University

• Decision Date: 26 February 2001
• Docket Number: No. CA-97-1755-A.,CA-97-1755-A.
• Parties: Annette M. LITMAN, Plaintiff, v. GEORGE MASON UNIVERSITY, et al. Defendants.
• Court: U.S. District Court — Eastern District of Virginia

131 F.Supp.2d 795

Annette M. LITMAN, Plaintiff, v. GEORGE MASON UNIVERSITY, et al. Defendants.

No. CA-97-1755-A.

United States District Court, E.D. Virginia, Alexandria Division.

February 26, 2001.

Annette G. Litman, Reston, VA, pro se.

William E. Thro, Newport News, VA, for George Mason University.

James V. Ingold, Fairfax, VA, for Defendant Norris.

MEMORANDUM OPINION

CACHERIS, District Judge.

Annette Litman brought suit against George Mason University under Title IX. Her Complaint alleges that the university should be held liable for sexual harassment and retaliation she suffered at the hands of two of her professors. The Court is presented with a novel question: whether a plaintiff alleging Title IX retaliation must show intentional discrimination and, if so, how she makes that showing. Defendants George Mason University and Gerard Mulherin have filed a Motion for Summary Judgment; Defendant Eugene Morris has file a Motion to Dismiss Count III. For the reasons stated below, the Court will grant summary judgment on Count I of the Complaint but will deny the other motions.

I.

Plaintiff Annette M. Litman ("Litman") was a student at George Mason University ("GMU") for approximately one year, from mid-1995 until mid-1996, when the University dismissed her after a disciplinary hearing.¹ GMU is a state-created university "subject at all times to the control of the [Virginia] General Assembly." Va. Code Ann. § 23-91.24. Moreover, the parties agree that GMU is a recipient of federal education funding within the meaning of Title IX, 20 U.S.C. § 1681(a).² See 20 U.S.C. § 1687. Title IX carries an implied private right of action, Cannon v. Univ. of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979),³ and thus permits students to recover damages for discriminatory conduct engaged in by their professors. Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60, 75-76, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992).

For purposes of considering the Motions before it, the Court takes all allegations in the Verified Amended Complaint as true. Litman alleges that in 1995, as a student in GMU's "extended studies" program, she enrolled in a computer science course with Professor Eugene Norris, for whom she also worked as a research assistant. Over the course of the fall semester, Norris became infatuated with Litman, telling her routinely that he loved her and asking questions about her marriage and sex life. Norris also stalked Litman, waiting for her after a class, on one occasion, to tell her that he "missed her" and that, despite her efforts to avoid him, he "had his ways" of locating her. After Litman terminated her research position with Norris, she received an e-mail from him stating, "Don't marry someone you can live with, Marry someone you can't live without."

In February 1996, Litman filed a sexual harassment complaint against Norris with GMU's Equity Office, requesting that Norris be reprimanded for his conduct and ordered to stay away from her. The Equity Office ordered Norris to avoid contact with Litman, but it refused to investigate the complaint further. Finding this response inadequate, Litman sought the intervention of GMU's president. She also circulated a petition urging GMU to investigate Norris's alleged wrongdoings, but GMU failed to undertake the requested investigation.

Unable to locate a professor to supervise her senior research project, Litman maintained that GMU's engineering faculty refused to interact with her once it became known that she had filed a sexual harassment complaint against one of its members. She thereafter sent suggestive and hostile e-mail messages to certain faculty members, resulting in two professors instituting sexual harassment charges of their own against her pursuant to GMU's Student Judicial Code. Following a trial before GMU's University Judicial Board in May 1996, the Board found Litman guilty of these charges, imposed academic sanctions against her, and dismissed her from GMU. Litman's complaint against Norris was tried in October 1996 and resulted in a finding that Norris had not violated GMU's sexual harassment policy but had failed to live up to the professional standards expected of GMU professors. No sanctions were imposed on Norris.

The Amended Complaint before the Court contains three Counts: Gender Discrimination in Violation of Title IX (Against GMU) (Count I); Retaliation in Violation of Title IX (Against GMU); and Intentional Infliction of Emotional Distress (Against Norris) (Count III). GMU has moved for summary judgment on Counts I and II, while Norris has filed a Motion to Dismiss Count III, should the Court grant summary judgment on Counts I and II.

II.

Summary judgment is appropriate only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir.), cert. denied, 513 U.S. 813, 115 S.Ct. 67, 130 L.Ed.2d 24 (1994). In reviewing the record on summary judgment, "the court must draw any inferences in the light most favorable to the non-movant." Brock v. Entre Computer Ctrs., 933 F.2d 1253, 1259 (4th Cir.1991).

The party seeking summary judgment has the initial burden to show the absence of evidence to support the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). However, the mere existence of a scintilla of evidence in support of a non-moving party's position is insufficient to avoid summary judgment. Anderson, 477 U.S. at 252, 106 S.Ct. 2505. Rather, the court must "determine whether the record taken as a whole could lead a reasonable trier of fact to find for the non-movant." Anderson, 477 U.S. at 252, 106 S.Ct. 2505; Brock, 933 F.2d at 1259.

III.

GMU argues that it is entitled to summary judgment on both Counts I (sexual harassment) and Count II (retaliation). Each will be discussed in turn.

A.

GMU contends that Plaintiff has failed to demonstrate GMU's actual knowledge of Norris's sexual harassment of her and GMU's deliberate indifference upon learning of the harassment. GMU argues, first, that prior to February 15, 1996, Litman failed to tell an "appropriate person under 20 U.S.C. § 1682" of the harassment, and that even if she informed an "appropriate person" of the harassment, she did not sufficiently identify the harasser to give the university actual notice; and second, that GMU was not deliberately indifferent, because once it had actual knowledge, it took prompt, effective steps to stop the harassment.

1.

GMU contends that it did not have actual knowledge of the harassment until February 15, 1996. Central to its defense is an argument that "only the University Equity Officer and his staff are considered `appropriate persons under 20 U.S.C. § 1682.'" (Mem. Supp. Summ. Judg. at 18.) Thus, GMU argues, when Litman informed one of her professors that another professor was sexually harassing her, she did not inform an "appropriate person" and therefore did not give GMU actual knowledge of the harassment.

For purposes of § 1682, an "appropriate person" is one who has "authority to address the alleged discrimination and to institute corrective measures" on behalf of the university. Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998). Gebser did not discuss who might be an official with such authority. See Floyd v. Waiters, 171 F.3d 1264 (11th Cir.1999). Nor has the Fourth Circuit defined the concept. However, the Gebser Court's holding, that traditional constructive notice and respondeat superior principles do not support liability under Title IX, sheds light on that issue. Unlike the provisions of Title VII, which consist of direct prohibitions on employers, Title IX conditions "an offer of federal funding on a promise by the recipient not to discriminate, in what amounts to a contract between the Government and the recipient of funds." Id. at 286, 118 S.Ct. 1989.⁴ The Supreme Court reasoned that, given the contractual nature of Title IX benefits and their origin in Congress's spending power, it would be illogical to jeopardize federal funding for an entire school district where the district was not aware of, and therefore could not cure, the discrimination. Id. at 287-88, 118 S.Ct. 1989; cf. Guardians Assn. v. Civil Serv. Comm'n of New York City, 463 U.S. 582, 598-99, 103 S.Ct. 3221, 77 L.Ed.2d 866 (1983) (opinion of White, J.) (Title VI). Thus, the Gebser Court concluded that "Congress did not intend to allow recovery in damages where liability rests solely on principles of vicarious liability or constructive notice." Id. at 288, 118 S.Ct. 1989.

Clearly, the contract theory underlying Title IX case law severely limits who can be considered an "appropriate person" under § 1682. This District recently considered the parameters of "appropriate person." In Baynard v. Lawson, 112 F.Supp.2d 524 (E.D.Va.2000), Judge Brinkema held that the reasoning of a pre-Gebser case, Rosa H. v. San Elizario Ind. Sch. Dist., 106 F.3d 648 (5th Cir.1997), remained sound in light of Gebser. In Rosa H., the Fifth Circuit emphasized that a school district has actual knowledge only when an official with the power to address the misconduct has such knowledge. This test will tend to exclude "the bulk of employees." Rosa H., 106 F.3d at 660. Similarly, in a case decided after Gebser, the Eleventh Circuit decided that a plaintiff must establish two things before Title IX liability will attach: first, "some supervisor with authority to take corrective action was placed on notice of the bad conduct," and second, "the supervisor possessing this authority was a school official high enough up the chain-of-command that...