Fourth Circuit sexual harassment decision

In a 8-2 en banc decision, the Fourth Circuit vacated a panel decision and found that a female student-athlete at the University of North Carolina could state sexual harassment claims under Title IX and Section 1983, the latter against the harasser (the soccer coach) and the University's attorney who did nothing other than to tell the plaintiff that she should try to make it up with the coach. The opinion was by Judge Michael, with a somewhat broader concurrence by Judge Gregory, and a dissent by Judge Niemeyer (joined by Judge Williams). http://pacer.ca4.uscourts.gov/dailyopinions/opinion.pdf/042447A.P.pdf 

Although not a Title VII decision, some of its discussion with respect to the harassment may be of relevance in the employment context. However, the court did recognize that the individual defendants could still raise qualified immunity as a defense to the Section 1983 claim, on remand.

The verbal and physical harassment that these female students had to endure at the hands (literally) of their male soccer coach, who happened to be considered the top soccer coach in the country, is truly graphic and disgusting. What is equally appalling to me is that the UNC's general counsel, a woman, so blithely brushed off the students' reports of the harassment.

Jennings v. Univ. of North Carolina, et al., No. 04-2447 (4th Cir. Apr. 9, 2007) (en banc)

Some excerpts follow:

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.

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.

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. . . .

[numerous graphic examples follow]

During the fall of her freshman year Jennings notified UNC about the hostile sexual environment that Dorrance had created within the women's soccer program. She lodged a complaint in a meeting with Susan Ehringhaus, legal counsel to the University and Assistant to the Chancellor. Jennings "gave [Ehringhaus] a [complete] run-down" about Dorrance's persistence in talking about players' sex lives when the team was assembled for practice or other activities. J.A. 1343. She reported her feelings of humiliation and discomfort. Ehringhaus dismissed these concerns and suggested that Jennings simply "work it out" with Dorrance. J.A. 1341. Jennings's complaint thus remained unaddressed by the UNC administration.

In August 1998, at the start of Jennings's junior year, she and Keller brought this action against UNC and several individuals associated with the University, including Dorrance and Ehringhaus, asserting (among others) claims under Title IX and § 1983. After the lawsuit was filed, Jennings was threatened and harassed to the extent that UNC officials warned her that they could not guarantee her safety on campus. At UNC's urging, she spent her senior year at another school and was then awarded a UNC degree. Keller settled her claims and took a dismissal with prejudice. Jennings's case proceeded to the entry of summary judgment in favor of the defendants. She appealed and a divided panel of this court affirmed the judgment. Jennings v. Univ. of N.C., at Chapel Hill, 444 F.3d 255 (4th Cir. 2006). We vacated the panel decision and reheard the case en banc.

. . . Sexual harassment occurs when the victim is subjected to sex-specific language that is aimed to humiliate, ridicule, or intimidate. See Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986); Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 331-32 (4th Cir. 2003). A coach's sexually charged comments in a team setting, even if not directed specifically to the plaintiff, are relevant to determining whether the plaintiff was subjected to sex-based harassment. See Spriggs v. Diamond Auto Glass, 242 F.3d 179, 184 (4th Cir. 2001) (considering, in Title VII case, hostile comments concerning African Americans in general as well as similar comments directed specifically toward plaintiff).

UNC argues that Dorrance's sex-focused comments were "of a joking and teasing nature" that did not amount to sexual harassment. Appellees' Br. at 22; see Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (noting that "simple teasing [and] offhand comments" do not amount to sexual harassment) (internal quotation marks and citation omitted). The facts, when viewed in the light most favorable to Jennings, show that Dorrance's persistent, sex-oriented discussions, both in team settings and in private, were degrading and humiliating to his players because they were women. His conduct went far beyond simple teasing and qualified as sexual harassment. See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81-82 (1998); Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993); Ocheltree, 335 F.3d at 332.

Whether gender-oriented harassment amounts to actionable (severe or pervasive) discrimination "depends on a constellation of surrounding circumstances, expectations, and relationships." Davis, 526 U.S. at 651 (quoting Oncale, 523 U.S. at 82). All the circumstances are examined, including the positions and ages of the harasser and victim, whether the harassment was frequent, severe, humiliating, or physically threatening, and whether it effectively deprived the victim of educational opportunities or benefits. See Davis, 526 U.S. at 650-51; Harris, 510 U.S. at 23. Evidence of a general atmosphere of hostility toward those of the plaintiff's gender is considered in the examination of all the circumstances. See Harris, 510 U.S. at 19 (considering harassment directed at both plaintiff and her female co-workers); see also Spriggs, 242 F.3d at 184 (stating that, "We are, after all, concerned with the 'environment' of . . . hostility, and whatever the contours of one's environment, they surely may exceed the individual dynamic between the complainant and [her harasser].").

Dorrance was not just any college coach. He was and still is the most successful women's soccer coach in U.S. college history, and he has coached the national team. Dorrance thus had tremendous power and influence over a player's opportunity for achievement in the soccer world, both at UNC and beyond. As Jennings put it, "[g]irls would cut off their right arm to be [at UNC]" and play for Dorrance. J.A. 1227. Dorrance encouraged his players to confide in him about all aspects of their personal lives, including the details of their sexual activities. He professed to them that he wanted to be a father figure. In reality, Dorrance abused his power as coach to ask his players questions a father would not ask; he pried into and talked openly about his players' sex lives in a way that was disrespectful and degrading. The disparity in power between Dorrance and his players trapped players into responding to his questions and enduring the environment. See Crandall v. N.Y. College of Osteopathic Med., 87 F. Supp. 2d 304, 319 (S.D.N.Y. 2000) (denying summary judgment in part because "unequal power relationship" between harasser and victim could support a jury finding of a sexually hostile environment).

Any age disparity between the harasser and his victim is also relevant to gauging whether there was a hostile or abusive sexual environment. Davis, 521 U.S. at 651. Here, Dorrance was a forty-five year-old man probing into and commenting about the sexual activities of young women, some of whom, like Jennings, were as young as seventeen. Indeed, Jennings felt the extra pressure of age difference when Dorrance called her to his California hotel room to assess her performance as a freshman player.

Jennings's facts show that in the fall of 1996 Jennings met with Susan Ehringhaus, Assistant to the Chancellor and counsel to the University. Ehringhaus was UNC's highest ranking lawyer and an official responsible for fielding sexual harassment complaints. Jennings informed Ehringhaus that Dorrance had created an abusive environment in the women's soccer program. Ehringhaus was given vivid details of Dorrance's sexual comments about his players when the team was together. Jennings also reported that the situation was causing her intense feelings of discomfort and humiliation. Ehringhaus dismissed this complaint by telling Jennings that Dorrance was a "great guy" and that she should work out her problems directly with him. J.A. 1341-42. Ehringhaus took no action on the complaint, and Dorrance's harassment continued. These facts are sufficient to establish that Jennings gave Ehringhaus, and by extension UNC, actual notice of the hostile environment created by Dorrance. This notice and the University's failure to take any action to remedy the situation would allow a rational jury to find deliberate indifference to ongoing discrimination.

Alan R. Kabat, The Bernabei Law Firm, PLLC