Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ross v. University of Tulsa

United States Court of Appeals, Tenth Circuit

June 20, 2017

ABIGAIL ROSS, Plaintiff - Appellant,
v.
UNIVERSITY OF TULSA, Defendant-Appellee. EQUAL RIGHTS ADVOCATES; SURVJUSTICE INC., Amici Curiae.

         Appeal from the United States District Court for the Northern District of Oklahoma (D.C. No. 4:14-CV-00484-TCK-PJC).

          John 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.

          John 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.

          Before KELLY, EBEL, and BACHARACH, Circuit Judges.

          BACHARACH, Circuit Judge.

         The 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).

         In this case, Ms. Ross presents distinct theories of the university's deliberate indifference.

         The 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.).

         The 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.

         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 deliberate indifference.

         We 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.

         I. Standard of Review

         In 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.

         II. The Elements of Ms. Ross's Claim

         For 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 that risk.
3. The sexual harassment was severe, pervasive, and objectively offensive.
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.

         On the 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." Id.

         On the 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).

         III. Ms. Ross's First Theory (Prior to the Alleged Rape of Ms. Ross)

         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.[1] 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 university.

         Like the district court, we reject this theory as a matter of law. But our reasoning differs from the district court's.

         In the 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.

         Thus, the court reasoned, it was not clearly unreasonable for the university to drop the matter.

         We take 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.

         A. The reports by the football players and J.M. could have provided campus-security officers with actual notice.

         The 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.

         "'[A]ctual 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.

         1. A reasonable fact-finder could infer that J.M. had characterized her sexual encounter as a rape.

         In 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.

         Following 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 evidentiary items.

         The 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.
J.M.: No.

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).[2]

         The 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, and
• Mr. Swilling's father was a powerful figure who had played professional football.

         J.M. added that the campus-security officers had agreed that Mr. Swilling's father was a prominent figure.

         The 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 14).[3]

         The 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.

         2. The fact-finder could reasonably infer that the reports by J.M. and the football players had been ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.