Wills v. Brown Univ.

• Decision Date: 11 December 1999
• Docket Number: No. 98-1701,98-1701
• Citation: 184 F.3d 20
• Parties: (1st Cir. 1999) MARKETA WILLS, Plaintiff, Appellant, v. BROWN UNIVERSITY, ET AL., Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 20

184 F.3d 20 (1st Cir. 1999)

MARKETA WILLS, Plaintiff, Appellant, v. BROWN UNIVERSITY, ET AL., Defendants, Appellees.

No. 98-1701.

United States Court of Appeals for the First Circuit.

Heard Dec. 11, 1999.

Decided July 15, 1999.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND.

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Sheila A. Engelmeier with whom Shane H. Anderson and Mackall, Crounse & Moore, PLC were on brief for appellant.

Steven M. Richard with whom Peter J. McGinn, Tillinghast Licht & Semonoff Ltd., Beverly E. Ledbetter, and Janice E. Wright were on brief for appellees.

Before Boudin, Lynch, and Lipez, Circuit Judges.

BOUDIN, Circuit Judge.

This appeal involves a lawsuit seeking damages for sexual harassment brought in the district court by the plaintiff, Marketa Wills, against Brown University and one of its former teachers, Professor Kayode Adesogan. The principal issues on appeal, but not the only ones, involve Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. The background events and the proceedings in the district court are as follows.

Adesogan, a chemistry professor at a Nigerian university, taught as a visiting professor at Brown between 1991 and 1994. In the fall semester of 1992, Wills--then a sophomore at Brown--took a course in organic chemistry. Although assigned to a section taught by Professor Ronald Lawler, Wills began to attend lectures in the other organic chemistry section, this one taught by Adesogan. Wills had earlier introduced herself to Adesogan at a social event and attended a small study group held by Adesogan in addition to his formal lectures.

On December 9, 1992, Wills sought out Adesogan in his office because she was having difficulty in the course. During this encounter, while purporting to pray with Wills, Adesogan twice pulled Wills into his lap, allegedly put his hand under her shirt, rubbed her stomach and twice touched or rubbed her breasts. The next day Wills met with Dean Karen Romer, who was then associate dean of academic affairs and had special responsibility for sexual assault or harassment claims; on December 14, 1992, Wills filed a written complaint. This incident lies at the core of Wills's subsequent suit against Brown and Adesogan.

In response to Wills's written complaint, Provost Frank Rothman and Dean of Faculty Bryan Shepp met with Wills on December 14, 1992, and then separately with Adesogan on December 15, 1992. Adesogan admitted hugging Wills, drawing her onto his lap and touching her breast, although he denied placing his hand under Wills's shirt. By letter dated December 23, 1992, Rothman placed Adesogan on probation, stating in a written reprimand that a further incident would be grounds for immediate dismissal but that this appeared to be Adesogan's first instance of improper behavior during his stay at Brown.

Rothman was mistaken. In October 1992, Adesogan had inappropriately hugged and touched another student, Laura Schleussner, who was enrolled in his section and had come to meet with him for help. Schleussner had then met with Dr. Barbara Tannenbaum, a lecturer at Brown, who was acting as an ombudswoman for Brown to oversee sexual harassment services. At trial, Schleussner and Tannenbaum gave somewhat different versions of the meeting, especially as to how much detail Schleussner provided. It appears that Schleussner wanted to remain anonymous but did want something done to prevent repetitions.

Schleussner had also complained to a chemistry department lecturer whom she knew and trusted, and that lecturer spoke in due course with Lawler, who taught the other section of organic chemistry. Lawler in turn told Adesogan that students would feel more comfortable if Adesogan kept his door open when conferring with students, but Lawler--who may have known few details--did not further advise the provost or anyone else in Brown's administration.

In February 1993, Rothman accepted the recommendation of the chemistry department that Adesogan be retained for another year and given a raise. In September 1993, another student, Tilly Gurman, filed a complaint that Adesogan had sexually harassed her in the fall of 1992. Romer informed Rothman, and Romer suggested no action because the Gurman incident had occurred before Adesogan had been reprimanded, and both Romer and Rothman believed that the warning to Adesogan in December 1993 had been sufficient.

In January 1994, another student, Amy Sanford, reported to Romer that between the fall of 1993 and January 1994, Adesogan had engaged in inappropriate conduct with Sanford (e.g., by repeated hugs and kisses), and Sanford told Romer that Adesogan had previously harassed another friend. Romer reported the matter to her immediate superior but it was not carried further, apparently because Sanford had not wanted it officially pursued.

Wills, after her own experience with Adesogan in December 1992, had not sought any further contact with him. She saw him thereafter on two different occasions: first, on an unspecified date, Adesogan entered a drugstore where Wills was working, and Wills immediately retreated to a back room; second, in January 1994, Wills enrolled in another chemistry course and discovered that Adesogan was the teacher. Wills testified that she rarely attended the lectures after the first session, but Adesogan did not long remain at Brown. During March 1994, Brown received further complaints of harassment by Adesogan from six or more other female students. That same month Brown dismissed Adesogan. Wills ultimately graduated from Brown and later enrolled in medical school in Pennsylvania.

In December 1995, just short of three years after her meeting with Adesogan, Wills filed a complaint in district court against Brown and Adesogan. The complaint set forth eight counts against Brown, Adesogan, or both, under state law (counts I through VIII¹) and two further federal claims against Brown under Title IX, one designated "hostile environment sex harassment" (count IX) and the other designated "quid pro quo sex harassment" (count X). Adesogan never responded, and the case proceeded solely against Brown. A default judgment in the amount of $275,000 was later entered against Adesogan.

In due course, Brown moved for summary judgment as to all counts against it. Following a hearing on November 24, 1997, the district court granted summary judgment in Brown's favor as to the claims for negligent hiring (count II), negligent retention (but not negligent supervision, which was a part of the same count III), negligent entrustment (count IV), and intentional and negligent infliction of emotional distress (counts V and VI). Thereafter, the court denied summary judgment on Wills's claims based on a hostile environment theory of sex discrimination. This theory was explicitly set forth in count IX based on Title IX (and by implication in count VII under the state civil rights statute).²

This disposition left for trial four separate claims against Brown: assault and battery (count I), negligent supervision (count III), and sex discrimination based both on a hostile environment and a quid pro quo theory (counts IX and X). Trial began on March 19, 1998, and when Wills rested her opening case, the district court granted Brown's motion for a directed verdict only as to the assault and battery claim and the quid pro quo sex discrimination claim. Fed. R. Civ. P. 50(a). Following further evidence, the negligent supervision and hostile environment claims were submitted to the jury.

On March 31, 1998, the jury returned a verdict in Brown's favor on both claims. Thereafter Wills filed a post-trial motion seeking judgment notwithstanding the verdict and, alternatively, a new trial on these same claims. Fed. R. Civ. P. 50, 59. The district court denied Wills's motion and entered judgment in favor of Brown. Wills now appeals, challenging (in her main argument) the district court's exclusion of evidence on her hostile work environment claim which was rejected by the jury. She also attacks the district court's grant of summary judgment on three of the state tort claims, its grant of directed verdicts on her assault and battery and her quid pro quo claims, and its denial of a new trial on the two claims rejected by the jury.

1. Title IX forbids schools that receive federal funding from discriminating against students "on the basis of sex." 20 U.S.C. § 1681(a). Starting from the now-accepted premise that sexual harassment can constitute sex discrimination, Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986), the Supreme Court has endorsed two different, although related, theories as to how such harassment can constitute sex discrimination either in the workplace (Title VII) or school context (Title IX).³

One theory, popularly known as "quid pro quo" harassment or discrimination, occurs most often when some benefit or adverse action, such as change in salary at work or a grade in school, is made to depend on providing sexual favors to someone in authority, Lipsett v. University of Puerto Rico, 864 F.2d 881, 898 (1st Cir. 1988); the other theory, under the rubric "hostile environment," applies where the acts of sexual harassment are sufficiently severe to interfere with the workplace or school opportunities normally available to the worker or student. Meritor 477 U.S. at 66; Davis v. Monroe County Bd. of Educ., 119 S. Ct. 1661 (1999). In this case, Wills advanced both theories against Brown--one in count IX and the other in count X. But the evidence now in dispute was offered as support for the hostile environment claim (the quid pro quo claim never reached the jury).

Broadly speaking, a hostile environment claim requires the victim to have been subjected to harassment severe enough to compromise the victim's employment or educational opportunities and, in the case of a Title IX claim (but not under Title VII), the institution must...