Mercer v. Duke University
| Decision Date | 12 March 2001 |
| Docket Number | No. 1:97CV00959.,1:97CV00959. |
| Citation | 181 F.Supp.2d 525 |
| Court | U.S. District Court — Middle District of North Carolina |
| Parties | Heather Sue MERCER, Plaintiff, v. DUKE UNIVERSITY, Defendant. |
Martha Melinda Lawrence, Burton Craige, Patterson Harkavy & Lawrence, Raleigh, NC, for Plaintiff.
John M. Simpson, Michelle C. Pardo, Fulbright & Jaworski, L.L.P., Washington, DC, for Defendant.
This matter is presently before the Court on both Defendant Duke University's Motion for Judgment as a Matter of Law, and Defendant Duke University's Alternative Motion for a New Trial and/or a Remittitur [Document # 103]. Plaintiff Heather Sue Mercer has also filed a Motion for Attorneys' Fees [Document # 118]. For the reasons that follow, Defendant's Motion for Judgment as a Matter of Law, and its Alternative Motion for a New Trial and/or a Remittitur [Document # 103] are DENIED. For the reasons that follow, Plaintiff's Motion for Attorneys' Fees [Document # 118] is GRANTED.
This is a gender discrimination action in which Plaintiff, Heather Sue Mercer ("Plaintiff" or "Mercer"), has alleged that Defendant, Duke University ("Defendant", "Duke", or "the University"), discriminated against her on the basis of her sex. Plaintiff brought her claim pursuant to Title IX of the Education Amendments of 1972 ("Title IX"), 20 U.S.C. §§ 1681-1688.
In high school, Mercer served as the field goal place kicker for her high school football team. To improve her kicking abilities, Mercer attended various football camps that specialized in training and developing field goal kickers. Based upon Mercer's successful high school football experiences as a place kicker, Mercer decided to continue place kicking at another level and to pursue a position as a football place kicker in college.
Mercer entered Duke as a freshman in August of 1994 and attended the University as a full-time student until her graduation in May of 1998. In September 1994, Mercer went to the Duke football office to discuss with Fred Goldsmith ("Goldsmith"), the head football coach, her interest in being a walk-on place kicker for the football team. Although it was clear that Duke was not required by Title IX to afford females the opportunity to play football, Goldsmith unilaterally made the decision during this meeting, without consulting with higher-ranking Duke officials, to give Mercer a "try-out."1
On October 3, 1994, Goldsmith, while dressed in a suit and tie, along with Fred Chatham ("Chatham"), the kicking coach, escorted Mercer to the football field, where they conducted Mercer's try-out. Both Chatham and Goldsmith testified during the trial that the conditions under which Mercer tried out were not ideal. More specifically, they admitted that they were unable to snap the ball or hold it in the proper way for Mercer to kick it. Given the kicking conditions, Mercer, by her own admission during trial, did not perform well. After the try-out, Goldsmith told Mercer that she had not made the football team because her kicking skills were not where they needed to be, but that she could help the team in a managerial capacity instead. The evidence showed that prior to Mercer's try-out, Goldsmith had never required another player to try out, if the player expressed an interest in walking on to the team.
During the 1994-1995 football season, Mercer attended all practices and games, participated in winter conditioning, and helped shag balls and keep statistics for the team's place kickers. In the spring of 1995, Mercer again sought a place on the team as a place kicker. In fact, she participated in spring 1995 practice with the other players. Spring practice itself was an important time in that it provided players with the opportunity to move up on the depth charts by impressing the coaches with their abilities. Moreover, spring practice concluded with the intra-squad "Blue-White" scrimmage, another event during which players were permitted to showcase their talents. Plaintiff's evidence revealed that the senior team members generally picked the team members for this game and that the "Blue-White" scrimmage was particularly important to the seniors because it provided the winning side certain "bragging rights." (Tr. at 70, Testimony of Redmon.)
According to Plaintiff, she was the first place kicker chosen from those place kickers who were available during spring practice. Two other prospective walk-on place kickers, Ted Post and Pat Tillou were chosen after Mercer had been selected.2 Mercer's team, the Blue team, was behind by one point and in field goal position with one minute remaining in the game. Mercer was called upon by Goldsmith to kick a field goal. Mercer successfully kicked a 28-yard field goal, winning the game for her team. Goldsmith then announced to Mercer and others that Mercer had made the team.
As a result of extensive publicity and widespread interest in Mercer being the first female to make the Duke football team, Goldsmith became concerned that Mercer's presence on the team might have an adverse effect on his players and recruiting. He became more concerned as a result of the publicity that arose from an article published in a Georgia newspaper. The article made light of the fact that Duke had a female football player and caused Goldsmith to express a belated concern that Mercer's presence on the team could be more harmful than helpful. More specifically, Goldsmith alleged that her presence on the team posed a threat to the psyche of the team in that team members who actually played might have become discouraged by the amount of undue media attention that Mercer would generate whether she actually played in a game or not.
Goldsmith first began to take steps to discourage Mercer's participation on the team when he advised her during the summer of 1995 that she would not be permitted to attend pre-season camp. The initial explanation given for his decision was that the NCAA limited the number of players who could attend pre-season camp to 105. The evidence showed, however, that 105 players did not, in fact, attend camp. Despite Goldsmith's refusal to extend Mercer an invitation, Mercer was still a member of the team at the time Goldsmith decided who would attend camp, and Mercer had not been advised otherwise about her status on the team.
Mercer wrote Goldsmith a letter in June of 1995, reiterating her desire to attend pre-season camp and explaining how important it was to her to bond with the other team members. Goldsmith responded to the letter by calling Mercer at her parent's home in New York. After reminding Mercer that she would not be permitted to attend camp, Goldsmith asked her why she was still interested in football. In addition, Goldsmith suggested to Mercer that she consider other extracurricular activities, such as beauty pageants. During trial, Goldsmith did not deny making these remarks to Mercer, but claimed, instead, that he did not remember the specifies of the conversation.
Later in the summer, before pre-season camp had commenced, Goldsmith sent all of the team members, including Mercer, a motivational letter describing his expectations for the team in the upcoming months. (Pl.'s Ex. 11, Letter from Goldsmith.) Mercer's letter, perhaps like all the others, addressed the team members generically by referring to them as "Men." Goldsmith made it a point to personalize Mercer's letter by including a written request for her to "excuse" the gender-focused nature of the salutation. (Id.) However, Goldsmith failed to indicate why he did not simply change the salutation in Mercer's letter, instead of writing her a personal note of apology.
Upon arriving back at Duke for the fall of 1995 school year, Mercer along with her mother, Diane Mercer ("Mrs.Mercer"), met with Goldsmith to discuss Mercer's status on the football team. During this meeting, Goldsmith told Mercer and Mrs. Mercer that his decision to put Mercer on the team was the worst decision he had ever made in his life. Goldsmith shared with Mercer and her mother a story about one of his own daughters who had played on an all-male baseball team when she was younger. Goldsmith then explained to them that his daughter had outgrown "little boys' games" and advised Mercer that she should, likewise, outgrow her interest in being on the Duke football team. Goldsmith further recommended that Mercer consider trying out for the cheerleading squad. He commented on how pretty she was and informed her that when people asked him what she looked like, he compared her to the actress Molly Ringwald.
Also during this meeting, Goldsmith told Mercer and Mrs. Mercer that Mercer would not be issued a uniform or pads for the coming season, including practice. In fact, Mercer was informed that she would not be allowed to dress out for games or to stand on the sidelines with the rest of the team during home games. Goldsmith explained that if he allowed Mercer to stand with the team, her presence would create an undesirable "Heather Sue Media Watch." To avoid such unwanted media attention, Goldsmith instructed Mercer that she should instead sit in the stands "with her boyfriend."
On August 25, 1995, after Mercer's meeting with Goldsmith, the Duke Sports Information Office issued a press release announcing that Mercer was "not on [the] active roster" for the football team. This was a new status that was created solely for Mercer. No other member of the football team had ever received such a designation. Specifically, the press release contained the following statement:
... Heather Sue Mercer will not be an active part of the Duke Football team, head coach Fred Goldsmith announced today. Mercer, a sophomore at Duke who joined the team last fall as a student manager, will take on that same capacity this season.
`Basically, Heather Sue's situation will be pretty much...
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