from the United States District Court for the Northern
District of Oklahoma (D.C. No. 4:14-CV-00484-TCK-PJC).
Clune, Hutchinson Black and Cook, LLC, Boulder, Colorado
(Lauren E. Groth, Hutchinson Black and Cook, LLC, Boulder,
Colorado, J. Spencer Bryan, and Steven J. Terrill, Bryan
& Terrill Law, PLLC, Tulsa, Oklahoma, with him on the
briefs), for Plaintiff-Appellant Abigail Ross.
David Lackey, Paul & Lackey, P.C., Tulsa, Oklahoma, for
Defendant-Appellee University of Tulsa.
Rebecca Peterson-Fisher, Equal Rights Advocates, San
Francisco, California, filed a brief for Amici Curiae Equal
Rights Advocates and SurvJustice Inc.
KELLY, EBEL, and BACHARACH, Circuit Judges.
BACHARACH, Circuit Judge.
plaintiff (Ms. Abigail Ross) was allegedly raped by a fellow
student at the University of Tulsa (Mr. Patrick Swilling).
The alleged rape led Ms. Ross to sue the university for money
damages under Title IX of the Education Amendments Act of
1972. Under Title IX, universities that receive federal
financial assistance cannot discriminate on the basis of
gender. See 20 U.S.C. § 1681(a). Such
discrimination occurs when a university obtains notice of
sexual harassment and responds with deliberate indifference.
See Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S.
274, 290 (1998).
case, Ms. Ross presents distinct theories of the
university's deliberate indifference.
first theory involves what happened before the alleged rape:
that the university acted with deliberate indifference by
failing in 2012 to adequately investigate reports that Mr.
Swilling had raped another student (J.M.).
second theory involves what happened after the alleged rape
of Ms. Ross. After Ms. Ross reported the rape, the university
conducted a student-conduct hearing. The purpose was to
determine whether Mr. Swilling had violated university policy
by raping Ms. Ross. By the time of the hearing, university
officials had learned of prior reports of sexual harassment
committed by Mr. Swilling. But these reports were excluded at
the hearing. Ms. Ross alleges that exclusion of these reports
constituted deliberate indifference on the part of the
University of Tulsa obtained summary judgment on both
theories, and Ms. Ross appeals. On the first theory, the
dispositive issue is whether a fact-finder could reasonably
infer that an appropriate person at the university had actual
notice of a substantial danger to others. On the second
theory, we must determine whether a reasonable fact-finder
could characterize exclusion of the prior reports as
conclude that both theories fail as a matter of law. On the
first theory, campus-security officers were the only
university employees who knew about reports that J.M. had
been raped. Based on Ms. Ross's arguments, a reasonable
fact-finder could not infer that campus-security officers
were appropriate persons for purposes of Title IX. And on the
second theory, there is no evidence of deliberate
indifference by the University of Tulsa. The university
excluded prior reports of sexual harassment based on a
reasonable application of university policy. Thus, we affirm
the award of summary judgment to the university.
Standard of Review
considering the award of summary judgment, we engage in de
novo review. Koch v. City of Del City, 660 F.3d
1228, 1237 (10th Cir. 2011). This review requires us to view
the summary-judgment evidence in the light most favorable to
Ms. Ross, resolving all factual disputes and drawing all
reasonable inferences in her favor. Estate of Booker v.
Gomez, 745 F.3d 405, 411 (10th Cir. 2014). Summary
judgment is appropriate only if the University of Tulsa shows
that (1) there are no genuine issues of material fact and (2)
the University of Tulsa is entitled to judgment as a matter
of law. Koch, 660 F.3d at 1238.
The Elements of Ms. Ross's Claim
both theories, Ms. Ross must satisfy four elements:
1. The University of Tulsa had actual notice of a substantial
risk that Mr. Swilling would commit an act of sexual
harassment (such as sexual violence) against a student.
2. The University of Tulsa was deliberately indifferent to
3. The sexual harassment was severe, pervasive, and
4. The sexual harassment deprived Ms. Ross of access to the
university's educational benefits or opportunities.
See Murrell v. Sch. Dist. No. 1, 186 F.3d 1238, 1246
(10th Cir. 1999). The University of Tulsa challenges only the
first and second elements.
first element, the University of Tulsa could obtain notice
only through an appropriate person. Gebser v. Lago Vista
Indep. Sch. Dist., 524 U.S. 274, 290 (1998). An
appropriate person "is, at a minimum, an official of the
[university] with authority to take corrective action [on
behalf of the university] to end the discrimination."
second element, a university is "deemed
'deliberately indifferent' to acts of
student-on-student harassment only where the
[university's] response to the harassment or lack thereof
is clearly unreasonable in light of the known
circumstances." Davis ex rel. LaShonda D. v. Monroe
Cty. Bd. of Educ., 526 U.S. 629, 648 (1999).
Ms. Ross's First Theory (Prior to the Alleged Rape of Ms.
Ross's first theory involves what happened before her
alleged rape: According to Ms. Ross, the University of Tulsa
failed to adequately investigate two reports in 2012 that Mr.
Swilling had raped J.M. For this theory, Ms. Ross points to
evidence that in 2012, two football players had reported a
rape of J.M. to campus security and J.M. then confirmed the
rape. But at J.M.'s behest, campus-security officers
dropped the matter. Ms. Ross contends that dropping the
matter left Mr. Swilling free to sexually assault others at
the district court, we reject this theory as a matter of law.
But our reasoning differs from the district court's.
district court's view, a fact-finder could reasonably
conclude that two high-ranking campus-security officers were
appropriate persons. But the district court held that (1)
J.M.'s report was too vague to provide notice and (2)
even if J.M.'s report had provided such notice, the
University of Tulsa's response would not have been
clearly unreasonable. To support the second holding, the
district court observed that
• J.M. had declined to press criminal charges against
Mr. Swilling or file a student-conduct complaint and
• J.M. had indicated that she did not want disruption in
her life prior to her upcoming graduation.
the court reasoned, it was not clearly unreasonable for the
university to drop the matter.
a different view. Viewing the evidence in the light most
favorable to Ms. Ross, a fact-finder could justifiably infer
that campus-security officers had learned of the reported
rape. That knowledge could reasonably suggest that dropping
the investigation was clearly unreasonable, leaving a
potential predator free to sexually assault others at the
university. But based on Ms. Ross's arguments, a
reasonable factfinder could not conclude that the
campus-security officers had authority to take corrective
action. In the absence of such authority, Ms. Ross's
first theory fails as a matter of law.
The reports by the football players and J.M. could have
provided campus-security officers with actual
threshold inquiry is whether the campus-security officers
obtained actual notice in 2012 of a substantial risk to
individuals on campus. In our view, a reasonable fact-finder
could infer such notice.
notice requires more than a simple report of inappropriate
conduct . . . .'" Escue v. N. Okla. Coll.,
450 F.3d 1146, 1154 (10th Cir. 2006) (quoting Doe v. Sch.
Admin. Dist. No. 19, 66 F.Supp.2d 57, 63 (D. Me. 1999)).
Here, however, the reports provided far more. In our view,
these reports could have led a fact-finder to reasonably
infer actual notice on the part of campus-security officials.
A reasonable fact-finder could infer that J.M. had
characterized her sexual encounter as a rape.
2012, two football players called campus security and
reported that their friend, J.M., had been raped in her
campus apartment by Mr. Swilling. The football players
explained that they had learned of the rape from J.M.'s
roommate. According to the football players, the roommate had
overheard the rape.
this report, J.M. spoke with campus-security officers. The
parties disagree over what J.M. shared with campus security.
According to Ms. Ross, J.M. confirmed that she had been raped
the prior night; according to the University of Tulsa, J.M.
stated that the sexual encounter had been consensual. Ms.
Ross's position is supported by at least three
first is a recorded conversation in 2014 between J.M. and a
campus-security officer, Sergeant Zach Livingston. During
this conversation, J.M. acknowledged that (1) Mr. Swilling
had sexually assaulted her in 2012 and (2) she had reported
the assault shortly thereafter to campus-security officers.
The conversation included this exchange:
Sergeant Livingston: I'm just trying to figure out
because when, you know, everything that we've discovered
about it has said that when you came in that you said it was
a consensual deal.
Appellant's App'x, vol. V at 1201, 3:16-3:28
(Plaintiff's Response to Defendant's Partial Motion
for Summary Judgment, Exhibit 12).
second evidentiary item is a recorded conversation between
J.M. and an investigator from the Tulsa County District
Attorney's Office. During this conversation, J.M. said
that in 2012, she had told campus-security officers:
"Patrick [Swilling] had taken advantage of me, "
"it was not with my . . . acknowledgement, " and
"I just don't want to even think about it
anymore." Appellant's App'x, vol. V at 1202,
39:02-39:47 (Plaintiff's Response to Defendant's
Partial Motion for Summary Judgment, Exhibit 13). J.M. also
indicated that she had explained her preference not to pursue
the matter with Mr. Swilling because
• she had only one semester remaining before graduation,
• she did not want her private life to be publicized,
• Mr. Swilling's father was a powerful figure who
had played professional football.
added that the campus-security officers had agreed that Mr.
Swilling's father was a prominent figure.
third evidentiary item is a recorded conversation between a
former campus-security officer and a Tulsa police detective.
The detective stated: "[T]he other thing was that [J.M.]
said that you guys knew . . . that . . . when she filled out
[a written report] that . . . she put in there that she was
raped." Appellant's App'x, vol. V at 1203,
13:43-13:54 (Plaintiff's Response to Defendant's
Partial Motion for Summary Judgment, Exhibit
University of Tulsa points to contrary accounts from current
and former campus-security officers. According to these
accounts, J.M. reported in 2012 that the sexual activity had
been consensual. Although a fact-finder could reasonably
credit these accounts, we must resolve this factual dispute
favorably to Ms. Ross. See Part I, above. Doing so,
we conclude that a fact-finder could reasonably determine
that J.M. had told campus security in 2012 that she was raped
by Mr. Swilling.
The fact-finder could reasonably infer that the reports by
J.M. and the football players had been ...