Fox v. Pittsburg State University

Filing 250

MEMORANDUM AND ORDER denying 207 Motion for Renewed Judgment as a Matter of Law as to the Title IX claim; denying 209 Motion for Renewed Judgment as a Matter of Law as to the Title VII claim; denying 214 Motion for New Trial or in the Alternative For Remittitur. Signed by Chief District Judge Julie A Robinson on 6/26/17. (hw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MARTHA FOX,
Plaintiff,
Case No. 14-CV-2606-JAR

v.
PITTSBURG STATE UNIVERSITY,
Defendant.

MEMORANDUM AND ORDER
A jury rendered a verdict in favor of Plaintiff Martha Fox on claims for damages arising
under Title VII and Title IX against Defendant Pittsburg State University (“PSU”), and the Court
entered judgment on the verdict. The parties have now filed post-trial motions.1 The motions
are fully briefed and the Court is prepared to rule. For the reasons explained more fully below,
the Court denies Defendant’s Motion for Renewed Judgment as a Matter of Law as to the Title
IX Claim (Doc. 207) and denies Defendant’s Motion for Renewed Judgment as a Matter of Law
as to the Title VII Claim (Doc. 209). The Court also denies Defendant PSU’s Motion For New
Trial or in the Alternative for Remittitur (Doc. 214).
Notably, Defendant improperly filed separate motions for judgment as a matter of law as
to each claim, effectively circumventing the page limitations. It is not in compliance with the
Federal Rules of Civil Procedure or the local rules, which contemplate one filing for all claims.2
Defendant should have filed one motion for judgment as a matter of law as to both claims and
requested leave to extend the page limitation if necessary. The Court deliberated about whether

1

The Court will consider Plaintiff’s motion for attorneys’ fees and expenses (Doc. 211) in a separate order.

2

See Fed. R. Civ. P. 50(b) (referring to motion in the singular throughout the rule); D. Kan. R. 7.1(e)
(requiring briefing to not exceed 30 pages without leave of the Court).

1

to strike the motions, but ultimately decided to consider both. Defendant was represented by
experienced counsel, Ms. Casement and Ms. Willoughby, who undoubtedly knew this was a
violation of the local rule and that it would create an excessive amount of work for Plaintiff’s
counsel as well as this Court. In fact, Defendant has single-handedly multiplied the briefing,
advanced an inordinate number of arguments, many of which are without merit, and seeded its
briefing with vexatious, inappropriate, uncivil and unprofessional language, as will be detailed in
the Court’s order on Plaintiff’s attorney fees and expenses. None of Defendant’s tactics is well
received by the Court.
I.

Background
This matter arose out of Plaintiff’s employment as a custodian at PSU between July 2010

and November 2015. Plaintiff contends that she was subjected to sexual harassment from April
2012 to March 2014 by Custodial Supervisor Jana Giles and custodian Cathy Butler Brown.
Plaintiff complained to members of the custodial management, including Wanda Endicott and
Kevin Malle, but nothing was done to stop or deter the conduct.
In February 2014, Plaintiff complained about the ongoing sexual harassment to Cindy
Johnson, PSU’s Director of Equal Opportunity and Affirmative Action. Plaintiff alleges
Defendant failed to properly investigate the complaints in that Johnson refused to interview
witnesses. Johnson told Plaintiff that she would not investigate Plaintiff’s complaints because
Johnson feared it would start a “firestorm.” Plaintiff alleges that she did not receive sexual
harassment training until after the alleged harassment took place. Plaintiff also alleges she
suffered emotional distress damages as a result of the sexual harassment she endured.
Defendant filed a motion for summary judgment on the Title IX and Title VII sexual
harassment and retaliation claims. The Court denied summary judgment on the Title IX and

2

Title VII hostile work environment sexual harassment claims, but granted summary judgment on
the Title VII and Title IX retaliation claims. The case proceeded to a jury trial on October 3,
2016 on the remaining claims. The jury returned a verdict in favor of Plaintiff on both claims,
awarding damages of $100,000 on the Title IX claim, and $130,000 on the Title VII claim. The
Court denied Defendant’s oral and written motions under Federal Rule of Civil Procedure 50(a)
for judgment as a matter of law,3 and entered judgment on the verdict in favor of Plaintiff and
against Defendant.4
II.

Motion for Judgment as a Matter of Law
A.

Standard

A district court may grant a motion for judgment as a matter of law under Rule 50 if it
“finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the
party on [the] issue.”5 The standard is met only when “the proof is all one way or so
overwhelmingly preponderant in favor of the movant as to permit no other rational conclusion.”6
In determining whether judgment as a matter of law is proper, a court may not weigh the
evidence, consider the credibility of witnesses, or substitute its judgment for that of the jury.7 In
other words, the Court must affirm a jury verdict if, viewing the record in the light most
favorable to the nonmovant, the record contains evidence upon which the jury could properly
return a verdict for the nonmovant.8 Judgment as a matter of law is appropriate “[i]f there is no

3

Doc. 196.

4

Doc. 197.

5

Fed. R. Civ. P. 50(a).

6

Crumpacker v. Kan. Dep’t of Human Res., 474 F.3d 747, 751 (10th Cir. 2007).

7

See Sims v. Great Am. Life Ins. Co., 469 F.3d 870, 891 (10th Cir. 2006).

8

See Bartee v. Michelin N. Am., Inc., 374 F.3d 906, 914 (10th Cir. 2004).

3

legally sufficient evidentiary basis . . . with respect to a claim or defense . . . under the
controlling law.”9
B.

Discussion

The Court addresses the motions for judgment on the Title IX and Title VII claims
separately, as the parties have done in the briefing.
1.

Title IX Claim

Defendant moves for judgment as a matter of law on the Title IX claim for four
reasons—(1) Plaintiff does not have a private right of action under Title IX as a custodian; (2)
Defendant is immune from Plaintiff’s Title IX claim; (3) Plaintiff failed to meet the standard for
damages under Title IX; and (4) Plaintiff provided insufficient evidence of actual notice to the
proper authority. Inexplicably, Defendant did not raise the first two grounds in its summary
judgment motion, but argues that because these are jurisdictional issues, they can be raised at any
time. Each argument will be addressed in turn.
a.

Private Right of Action

Plaintiff invoked both Title VII and Title IX at trial to seek relief for the hostile work
environment sexual harassment she faced based on her sex. Defendant argues that Title IX does
not grant a private right of action to a custodial employee. This argument is twofold. First,
Defendant argues that Title IX is “preempted” in the context of employee-on-employee sexual
harassment by Title VII. 10 Second, even if Title VII does not displace relief under Title IX,

9

Baty v. Willamette Indus., Inc., 172 F.3d 1232, 1241 (10th Cir. 1999) (quoting Harolds Stores, Inc. v.
Dillard Dep't Stores, 82 F.3d 1533, 1546–47 (10th Cir. 1996)).
10

As the Third Circuit recognized, preemption is a doctrine that normally relates to the relationship
between state and federal law. See Kazar v. Slippery Rock Univ.of Pa., No 16-2161, 2017 WL 587984, at *5 n.5 (3d
Cir. Feb. 14, 2017). Preemption, therefore, is not the proper term to describe the relationship between Title VII and
Title IX, which are both federal law. Rather, the issue is whether these federal laws displace each other. The Court
will refer to this theory as displacement throughout the order for purposes of clarity.

4

there is no implied private right of action for employee-on-employee sexual harassment where,
as here, the employee does not have any relation to an educational program or activity.
i.

Waiver

As to the “preemption” argument, Plaintiff argues this has been waived because it was
not raised in the Rule 50(a) motion made at trial. Although inartfully drafted, the Court believes
that Defendant’s response is that this is “jurisdictional” in nature, so it cannot be waived and may
be raised at any time. The general rule is that “[a] party may not circumvent Rule 50(a) by
raising for the first time in a post-trial motion issues not raised in an earlier motion” for judgment
as a matter of law.11 However, under Federal Rule of Civil Procedure 12(h)(3), a party may raise
a challenge to subject matter jurisdiction at any time. Given the complete lack of authority and
the novelty of this issue, the Court will assume without deciding that “preemption” is
“jurisdictional” and may be raised for the first time in a Rule 50(b) motion.
ii.

Title VII Displacing Relief Under Title IX

The Court finds that even if Defendant’s argument that Title VII displaces Title IX has
not been waived, it is without merit. The issue of whether Title VII displaces relief under Title
IX to recover damages for employment discrimination is unsettled.12 The parties do not cite nor
is the Court aware of Tenth Circuit precedent addressing whether Title VII displaces Title IX in
the employment discrimination context. But there is a split of authority among other circuits that

11

United Int’l Holdings, Inc. v. Wharf (Holdings) Ltd., 210 F.3d 1207, 1228 (10th Cir. 2000); see Fed. R.
Civ. P. 50(a)–(b).
12

Title VII makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual, or
otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2 (1998).
Title IX was passed to address the growing problem of sex discrimination in educational programs. See
118 Cong. Rec. 5804-15 (1972); H.R. Rep. No. 554, 92d Cong., 1st Sess. 1-3 (1972). Title IX provides that “[n]o
person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or
be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20
U.S.C. § 1681(a).

5

have addressed the issue of whether a Title VII claim displaces relief under Title IX. As
explained in more detail below, this Court finds more persuasive the reasoning of those circuit
courts that have held that Title VII does not displace Title IX.
There are six Supreme Court decisions guiding this Court’s conclusion that Title VII does
not displace Title IX.13 Most relevant to this case, in Jackson v. Birmingham Board of
Education, a high school employee was relieved of his coaching position when he complained of
disparate treatment of the girls’ basketball team.14 The Supreme Court recognized an
employee’s private right of action for retaliation under Title IX despite no express prohibition in
the statute because if the funding recipient were “permitted to retaliate freely,” “individuals” who
witness sex discrimination would be “loath to report it” and “all manner of Title IX violations
might go unremedied.”15 Though not explicitly addressed, the Supreme Court did not indicate
that Title VII displaced relief under Title IX. Rather, the Supreme Court recognized “Title VII is
a vastly different statute,” as it distinguished Title IX’s “broadly written general prohibition on

13

In Johnson v. Railway Express Agency, Inc., the Supreme Court explained a private-sector employee
“clearly is not deprived of other remedies” and is not “limited to Title VII in search for relief.” 421 U.S. 454, 459
(1975). By contrast, in Brown v. General Services Administration, the Court recognized an amendment to Title VII
(42 U.S.C. § 2000e-16) that waived sovereign immunity for federal employees’ access to relief from workplace
discrimination was the “exclusive” remedy for federal employment discrimination claims. 425 U.S. 820, 829
(1976). Importantly, the Court noted that this was unlike Johnson because Johnson held only that Title VII does not
displace other remedies in private employment discrimination. Id. at 833. In Cannon v. University of Chicago, the
Supreme Court held that there was an implied private right of action for victims of sex discrimination by universities
receiving federal funding. 441 U.S. 677, 703–10 (1979) (applying Title IX to applicant of medical school that was
rejected based on sex notwithstanding that Title IX does not “expressly authorize” a private right of action). In
North Haven Board of Education v. Bell, the Supreme Court clarified that Title IX’s prohibition of sex
discrimination applied not only to students, but also to “[e]mployees who directly participate in federal programs or
who directly benefit from federal grants, loans or contracts,” thereby broadening the scope of Title IX to include
employment discrimination. 456 U.S. 512, 520 (1982). North Haven recognized Congress provided a “variety of
remedies, at times overlapping, to eradicate” private-sector employment discrimination. Id. at 535 n.26. In Franklin
v. Gwinnett County Public Schools, the Court held that money damages were available for a student-plaintiff filing
an action for sexual harassment under Title IX. 503 U.S. 60, 72–76 (1992) (resolving circuit split and “conclud[ing]
that a damages remedy is available for an action brought to enforce Title IX”).
14

544 U.S. 167, 171 (2005).

15

Id. at 180.

6

discrimination” with Title VII’s “greater detail [with respect to] the conduct that constitutes
discrimination.”16
The circuits have split on whether Title VII is intended to displace Title IX for claims
against schools in the employment discrimination context. In Lakoski v. James, the Fifth Circuit
held that Title VII displaces Title IX because allowing Title IX employment discrimination
claims to proceed without satisfying Title VII’s exhaustion requirements would upset Congress’s
remedial scheme for redressing employment discrimination.17 In Lakoski, the plaintiff, a former
professor denied tenure, argued that based on Cannon, North Haven, and Franklin, there was an
implied right of action under Title IX for employment discrimination.18 The Fifth Circuit
disagreed with this “jurisprudential arithmetic,” distinguishing Cannon and Franklin as related to
claims of prospective or current students, and North Haven as unrelated to the validity Title
VII.19 In reaching its conclusion, the Fifth Circuit observed that “Congress enacted Title IX only
months after extending Title VII to state and local governmental employees,” and remarked
“[t]hat Congress intend[ing] to create a bypass of Title VII’s administrative procedures so soon
after its extension to state and local employees is an extraordinary proposition.”20 Thus, the Fifth
Circuit refused to do “violence to the congressionally mandated procedures for Title VII,” and
held it was error to submit Plaintiff’s Title IX claim to the jury.21 The Seventh Circuit has held
similarly.22 But both opinions pre-dated Jackson.

16

Id. at 175 (citing Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 283–84, 286–87 (1998)).

17

66 F.3d 751, 754 (5th Cir. 1995).

18

Id. at 754.

19

Id.

20

Id. at 756.

21

Id. at 754.

22

See Waid v. Merrill Area Pub. Sch., 91 F.3d 857, 862 (7th Cir. 1996).

7

By contrast, the Fourth Circuit in Preston v. Commonwealth of Virginia ex rel. New River
Community College held that retaliatory employment discrimination may be sought under Title
IX and Title VII.23 The Fourth Circuit reasoned Title VII and its judicial interpretations provide
a persuasive body of standards to which courts may look in shaping contours of private rights of
action under Title IX.24 Thus, the Fourth Circuit concluded that “[a]n implied private right of
action exists for enforcement of Title IX . . . [which] extends to employment discrimination on
the basis of gender by educational institutions receiving federal funds.”25 The Sixth Circuit and
the First Circuit have held similarly.26
In March 2017, in Doe v. Mercy Catholic Medical Center, the Third Circuit held that
Title IX and Title VII had concurrent applicability and that Title VII does not displace Title IX
employment discrimination claims.27 The Third Circuit looked to the six Supreme Court
decisions discussed above to guide its decision.28 From these six decisions, it derived four
guiding principles. One, private-sector employees are not limited to Title VII in their search for
relief from workplace discrimination.29 Two, it is a matter of policy left for Congress’s
constitutional purview whether an alternative avenue of relief from employment discrimination

23

31 F.3d 203, 207 (4th Cir. 1994).

24

Id.

25

Id. at 205–06.

26

Ivan v. Kent St. Univ., No. 94-4090, 1996 WL 422496, at *3 n. 10 (6th Cir. 1996) (overruling district
court conclusion that Title VII displaces an individual’s private remedy under Title IX); accord Lipsett v. Univ. of
Puerto Rico, 864 F.2d 881, 896–97 (1st Cir. 1988).
27

850 F.3d 545, 563 (3d Cir. 2017). The Court notes that this case involved a medical resident. Defendant,
in briefing, suggests that medical residents are students. However, the Court still finds these cases as applicable in
the employment discrimination context because the courts often consider the medical residents as employees or
employee-student mix.
28

Id. at 560 (citing Johnson v. Ry. Express Agency, Inc., 421 U.S. 454 (1975); Brown v. Gen. Servs. Adm.,
425 U.S. 820 (1976); Cannon v. Univ. of Chi., 441 U.S. 677 (1979); N. Haven Bd. of Educ. v. Bell, 456 U.S. 512
(1982); Franklin v. Gwinnett Cty. Pub. Sch., 503 U.S. 60 (1992); Jackson v. Birmingham Bd. of Educ., 544 U.S. 167
(2005)).
29

Mercy Catholic Med. Ctr., 850 F.3d at 562.

8

might undesirably allow circumvention of Title VII’s administrative requirements.30 Three, the
provision implying Title IX’s private cause of action, 20 U.S.C. § 1681(a), encompasses
employees, not just students.31 Four, Title IX’s implied private cause of action extends to
employees of federally funded education programs who allege sex-based retaliation claims under
Title IX, and no subsequent decision of the Supreme Court has narrowed this principle.32 The
Fourth Circuit declined to follow the Fifth and Sixth Circuit decisions because they “did not
address the Supreme Court’s decisions in Johnson and Brown and the provisions of North Haven
rejecting ‘policy’-based rationales” and “were decided a decade before the Supreme Court
handed down Jackson, which explicitly recognized an employee's private claim under
Cannon.”33 Thus, the plaintiff was entitled to relief under Title IX and Title VII.34
This Court will follow the approach of the majority—the First, Third, Fourth, and Sixth
Circuits— that Title VII and Title IX have concurrent applicability in employment

30

Id.

31

Id. (citing N. Haven, 456 U.S. at 520; Cannon, 441 U.S. at 694).

32

Id. at 562–63 (citing Jackson, 544 U.S. at 171).

33

Id.

34

Id.; see also Kazar v. Slippery Rock Univ. of Pa., No 16-2161, 2017 WL 587984 (3d Cir. Feb. 14, 2017).
The Third Circuit opinion assumed without deciding that Title IX may be used to bring an employment
discrimination claim. However, Judge Shwartz wrote in concurrence to provide an analysis of the Supreme Court
precedent relevant to whether Title VII displaces Title IX. Id. at *7–8 (Shwartz, J., concurring). Judge Shwartz
noted first, the Supreme Court recognized in North Haven Board of Education v. Bell that Title IX covers
employment discrimination, and in Cannon v. Chicago, it recognized that there is a private right of action for
employment discrimination. 456 U.S. 512, 525, 535–36 (1982); 441 U.S. 677, 696 (1979). Second, the Supreme
Court recognized in Johnson v. Railway Express Agency Inc. that Title VII was not the exclusive remedy for
employment discrimination. 421 U.S. 454, 459 (1975). Third, the Supreme Court has recognized that Title IX and
Title VII are vastly different statutes. Kazar, 2017 WL 587984, at *7 (citing Jackson v. Birmingham Bd. of Educ.,
544 U.S. 167, 175 (2005)) (noting the difference in offenders, statute of limitations, remedies, and goals of the
statutes). Fourth, because many circuits apply Title VII standards to Title XI cases, there is a recognized parity
between Title VII and Title IX. Id. Fifth, although the Supreme Court has held that Congress’s enactment of a
comprehensive scheme to address a problem may demonstrate “congressional intent to preclude” seeking remedies
via other statutes, that principle was not applicable to Title IX because Title IX was enacted after Title VII. Id. at
*8. Thus, Judge Shwartz ultimately concluded that Title VII did not displace Title IX for recovery in the
employment discrimination context.

9

discrimination claims.35 Reading the six Supreme Court cases outlined above together, this
Court is persuaded that there is a private right of action for employees of educational institutions
receiving federal funding under both Title VII and Title IX. If Congress intended for Title VII to
displace employment discrimination claims under Title IX, it could have drafted Title IX, which
was enacted following Title VII, to state as much.36 Instead, Title IX broadly covers any
“person,” not just students, alleging discrimination. The Supreme Court has already rejected the
argument that Title VII is the exclusive remedy for employment discrimination actions, so the
argument that Title IX employment discrimination claims may circumvent the Title VII scheme
is rejected.37 Further, while Title VII and Title IX are often called analogous or similar, the two
statutes are not identical. The Court declines to infer any preference for recovery under Title VII
without a more definite expression from Congress38—for example, a provision in Title VII
barring concurrent private Title IX claims. Accordingly, Title VII does not displace employment
discrimination claims pursuant to Title IX.
35

This position is also consistent with the holdings of a number of recent district court cases. See, e.g.,
Winters v. Pa. St. Univ., 172 F. Supp. 3d, 774–75 (M.D. Pa. 2016) (holding Title VII did not displace sex
discrimination claim brought under Title IX by male former university professor terminated following sexual
harassment investigation); Russell v. Nebo Sch. Dist., No. 16-00273, 2016 WL 4287542 (D. Utah Aug. 15, 2016)
(concluding Title VII does not displace Title IX in Title IX employment discrimination case alleging sexual
harassment). Contra Uyar v. Seli, No. 16-186, 2017 WL 886934, at *6 (D. Conn. Mar. 6, 2017) (holding Title VII
was the plaintiff’s exclusive remedy for sexual harassment and dismissing Title IX claims following precedent in
Urie v. Yale Univ., 331 F. Supp. 2d 94, 97–98 (D. Conn. 2004)).
36

This is only further propounded by subsequent amendments to Title VII eliminating an exemption for
higher education employees from pursuing a Title VII claim. As the Supreme Court explained in 1990 in University
of Pennsylvania v. EEOC, 493 U.S. 182, 189–90 (1990) (citations omitted), when Title VII was enacted originally in
1964, it exempted an “educational institution with respect to the employment of individuals to perform work
connected with the educational activities of such institution.” Eight years later, Congress eliminated that specific
exemption by enacting § 3 of the Equal Employment Opportunity Act of 1972, 86 Stat. 103. This extension of Title
VII was Congress’ considered response to the widespread and compelling problem of invidious discrimination in
educational institutions.
37

See Johnson v. Ry. Express Agency, Inc., 421 U.S. 454, 459 (1975) (“Despite Title VII’s range and its
design as a comprehensive solution for the problem of invidious discrimination in employment, the aggrieved
individual clearly is not deprived of other remedies he possesses and is not limited to Title VII in his search for
relief. The legislative history of Title VII manifests a congressional intent to allow an individual to pursue
independently his rights under both Title VII and other applicable state and federal statutes.”) (citation omitted).
38

Mercy Catholic Med. Ctr., 850 F.3d at 564 (citing Johnson, 421 U.S. at 461).

10

This Court is further persuaded that this is the approach that would be taken by the Tenth
Circuit given that the Tenth Circuit applies Title VII principles to Title IX employment
discrimination actions.39 As the Tenth Circuit has noted, Title VII is “the most appropriate
analogue when defining Title IX’s substantive standards.”40 In fact, as recently as June 2017, the
Tenth Circuit in Hiatt v. Colorado Seminary applied Title VII standards to hybrid Title VII and
Title IX retaliation claims by a university faculty member.41
Nothing leads this Court to believe that Title VII is meant to be the “exclusive” remedy
for employment discrimination. Further, nothing leads this Court to believe that Title VII is
meant to displace Title IX, as the Tenth Circuit has recognized that these causes of action are
“analogous,” not identical. While the two statutes address similar conduct, there are still
differences, including “target[ing] different offenders, hav[ing] different statutes of limitations,
and provid[ing] some different remedies.”42 By recognizing that Title VII standards apply to
Title IX employment claims, the Tenth Circuit has implicitly recognized that Title VII does not
displace Title IX to address employment discrimination.
iii.

Nexus to Educational Programs or Activities for Title IX

The Court next addresses Defendant’s alternative argument that Plaintiff must show her
work has a “nexus” to education in order to qualify for Title IX’s remedies. Defendant argues
that this “nexus” is a requirement for employment discrimination actions following the 1987
amendment to Title IX. The 1987 amendment to Title IX was in response to prior holdings of
the Supreme Court limiting its reach to only programs that received federal funding. In 1982, in
39

See Roberts v. Colo. St. Bd. of Agric., 998 F.2d 824, 832 (10th Cir. 1993); Mabry v. St. Bd. of Comm.
Colls. & Occupational Educ., 813 F.2d 311, 316 n.6 (10th Cir. 1987).
40

Roberts, 998 F.2d at 832.

41

--F.3d--, No. 16-1159, 2017 WL 2384732, at *6 n.8 (10th Cir. June 2, 2017).

42

Kazar, 2017 WL 587984, at *7.

11

North Haven, the Supreme Court held that Title IX’s prohibition of sex discrimination of
students and employees, but only employees who directly participated in federal programs or
directly benefitted from federal grants, loans or contracts.43 The Supreme Court noted that
Congress had not adopted a proposal that would have prohibited “all discriminatory practices of
an institution” receiving federal funds.44 Further, in 1984, in Grove City College v. Bell, the
Supreme Court interpreted Title IX’s phrase “education program or activity” to only apply to the
particular programs receiving federal funding.45
In response to these holdings narrowing the scope of Title IX protection, Congress
enacted the Civil Rights Restoration Act of 1987.46 The amendment sought to clarify §1681(a),
which reads that “[n]o person in the United States shall, on the basis of sex, be excluded from
participation in, be denied the benefits of, or be subjected to discrimination under any education
program or activity receiving Federal financial assistance.” The amendment to Title IX specified
that the term “program” as used in § 1681 means “all of the operations of” the institution that
received federal funding, regardless of whether the specific program at issue benefitted from that
funding.47 Indeed, the Senate Report addressing the Civil Rights Restoration Act of 1987
clarified that discrimination is “prohibited throughout entire agencies or institutions if any part
receives Federal financial assistance,”48 and that “all of the operations of” an educational

43

N. Haven Bd. of Educ. v. Bell, 456 U.S. 512, 520 (1982).

44

Id. at 537 (emphasis in original).

45

465 U.S. 555, 574–75 (1984).

46

Pub. L. 100-259, 102 Stat. 28.

47

See 20 U.S.C. § 1687.

48

S. Rep. No. 100-64, at 6 (1987) (emphasis added). Defendant contends the legislative history is cited out
of context. It goes on to offer a statement of Senator Bayh in 1972 during the congressional debates over the bill
containing Title IX. 118 Cong. Rec. 5803 (daily ed. Feb. 28, 1972). He stated “[m]ore specifically, the heart of this
amendment is a provision banning sex discrimination in educational programs receiving Federal funds. The
amendment would cover such crucial aspects as admissions procedures, scholarships, and faculty employment, with
limited exceptions.” Id. (emphasis added). Defendant emphasizes the word “faculty employment,” yet fails to even

12

institution or system would include, but is not limited to: “traditional educational operations,
faculty and student housing, campus shuttle bus service, campus restaurants, the bookstore, and
other commercial activities.”49 Overall, the amendment’s purpose was to reaffirm pre-Grove
City College judicial and executive branch interpretations and enforcement practices which
provided for “broad coverage” of the anti-discrimination provisions of these civil rights
statutes.50
The Court rejects Defendant’s argument that the 1987 amendment to Title IX only
decided the issue of whether the institution as a whole is covered, and that a plaintiff still needs
to show that her work had a “nexus” to educational programs or activities. Given Title IX’s
broad language, this position simply does not comport with the plain language of the statute—
“[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be
denied the benefits of, or be subjected to discrimination under any education program or activity
receiving federal financial assistance.”51 The Supreme Court has read “no person” broadly; as
North Haven puts it so aptly,
“[b]ecause § [1681(a)] neither expressly nor impliedly excludes employees from its
reach, we should interpret the provision as covering and protecting these ‘persons’ unless
other considerations counsel to the contrary. After all, Congress easily could have
substituted ‘student’ or ‘beneficiary’ for the word ‘person’ if it had wished to restrict the
scope of § [1681(a)].”52

Further, the requirement of a nexus to “education” is not consistent with Title IX’s broad
purpose, which is “to avoid the use of federal resources to support discriminatory practices” and

acknowledge the words “limited exceptions” immediately following. The Court finds this is not a limiting
statement, but rather provides examples of some of the things that Title IX was seeking to protect.
49

S. Rep. No. 100-64, at 17 (1987).

50

S. Rep. No. 100-64, at 4 (1987).

51

20 U.S.C. § 1681(a) (emphasis added).

52

N. Haven Bd. of Educ. v. Bell, 456 U.S. 512, 521 (1982).

13

“provide individual citizens effective protection against those practices.”53 Particularly, with the
first purpose in mind, this seems to be an institution-wide objective that is not limited narrowly
to university educational initiatives, as these institutions as a whole receive federal funding.
Moreover, many of the cases Defendant cites for the proposition that Plaintiff’s work
must relate to an educational program or activity are no longer of continued validity in light of
the 1987 amendment.54 Further, nothing in the language or legislative history of the 1987
amendment suggests that Congress intended to limit Title IX’s scope to only certain members of
the university or intended to require a “nexus” to educational programs or activities. Rather,
Congress intended for Title IX to broadly cover the entirety of the institution, including “campus
shuttle bus service, campus restaurants, the bookstore, and other commercial activities.”55
Indeed, the word “broad” is used 35 times in the legislative history of the 1987 amendment
alone.
Defendant also relies upon Preyer v. Darmouth,56 a post 1987 district court decision that
entirely misreads the 1987 amendment. In Preyer, the court held that a college dining services
employee could not maintain a sex discrimination under Title IX,57 because “in order to give
effect to the word ‘education,’ the prohibition against sexual discrimination in § 1681(a) applies
only to those operations of a college or university that are educational in nature or bear some
relation to the educational goal of the institution.”58 But, the district court’s interpretation of the
word “education” to only involve operations that are educational in nature contravenes
53

Cannon v. Univ. of Chi., 441 U.S. 677, 703 (1979).

54

See Walters v. President & Fellows of Harvard College, 601 F. Supp. 867, 868 (D. Mass. 1985); Urie v.
Yale University, 331 F. Supp. 2d 94, 97–98 (D. Conn. 2004).
55

S. Rep. No. 100-64, at 17 (1987).

56

968 F. Supp. 20, 25 (D.N.H. 1997).

57

Id.

58

Id.

14

Congressional intent that Title IX reach “traditional educational operations, faculty and student
housing, campus shuttle bus service, campus restaurants, the bookstore, and other commercial
activities.”59
The Court further rejects Defendant’s suggestion that Congress intended for Title IX to
distinguish the janitorial staff as any less a part of the university or deserving of protection than
faculty. Defendant asks this Court to draw an arbitrary line that prohibits groundskeepers or
maintenance workers from asserting Title IX claims but allows professors or teachers.
Defendant ignores the fact that there are hundreds of different types of employees at a university
or on a university campus, such as bus drivers, cafeteria workers, librarians, childcare workers,
bookstore employees, docents at the university art museum, athletic directors, resident assistants
at dorms, and student admissions recruiters. Nothing Defendant cites persuades this Court that
Title IX is meant to allow claims by some of these employees but not all. Title IX must be given
“a sweep as broad as its language.”60
Lastly, Defendant conflates the issue of whether Title IX requires that an employee have
a “nexus” to educational programs or activities and the issue of whether a student’s action under
Title IX requires a showing that there was a “systemic effect of denying the victim equal access
to an educational program or activity” under Davis v. Monroe County Board of Education.61 A
student necessarily must show a “systemic effect of denying the victim equal access to an
educational program or activity,” to demonstrate that gender-oriented conduct rises to the level
of actionable harassment under Title IX.62 By Defendant’s own admission, this would be a

59

S. Rep. No. 100-64, at 17 (1987).

60

N. Haven Bd. of Educ. v. Bell, 456 U.S. 512, 521 (1982).

61

526 U.S. 629, 652 (1999).

62

Id. at 651–53.

15

separate inquiry from an inquiry into whether Plaintiff’s work has a “nexus” to educational
programs or activities.
In any event, Defendant’s argument is without merit. Defendant relies on cases that
involve student sexual harassment under Title IX.63 But, as the Court explained above, the Tenth
Circuit holds that Title VII standards apply to Title IX employment discrimination cases,64 and
there is no indication that such a showing of systemic effect of denying access to educational
programs or activities is required under Title VII. Indeed, such a requirement would render it
impossible for teachers and other employees to get relief under Title IX although they are
undoubtedly covered by Title IX given the Supreme Court’s holding in Jackson v. Birmingham
Board of Education.65 Thus, the Court finds that Plaintiff need not make this showing.66
b.

Sovereign Immunity

Defendant also argues that it cannot be held liable for the Title IX claim because
Congress did not intend to waive sovereign immunity of the states. Defendant contends that the
state did not have “notice” of the particular type of lawsuit asserted here—“an implied right of
action for money damages based on a claim of employment discrimination against a sovereign
for alleged sexual harassment by a co-worker”—when it accepted federal funds more than five

63

See id. (considering student sexual harassment claim); J.M. ex rel. Morris v. Hilldale Indep. Sch. Dist.
No. 1-29, Nos. 08-7104, 08-7105, 2010 WL 3516730, at *4 (10th Cir. 2010) (considering student sexual harassment
claim); K.T. v. Culver-Stockton Coll., No 16-165, 2016 WL 4243965, at *6 (E.D. Mo. Aug. 11, 2016) (considering
sexual harassment claim of student recruit); Johnson v. Indep. Sch. Dist. No. 47, 194 F. Supp. 2d 939, 946 (D. Minn.
2002) (considering student sexual harassment claim).
64

Mabry v. St. Bd. of Comm. Colls. & Occupational Educ., 813 F.2d 311, 316 n.6 (10th Cir. 1987) (“There
is a well-developed body of case law concerning employment-related sex discrimination under Title VII; courts
should turn to that case law for guidance if confronted with an employment-related allegation of discrimination
under Title IX.”).
65

544 U.S. 167 (2005). Any language reflecting a “systemic denial” of access to educational benefits is
notably absent from the Title IX claim asserted in Jackson for employment retaliation.
66

Admittedly, this Court improperly applied this standard in ruling on Defendant’s Rule 50(a) motion, but
as explained in Part II.B.1.c.i. below, Plaintiff did not respond to this argument at the Rule 50(a) stage and the Court
now has the benefit of complete briefing on the issue.

16

years ago.67 Defendant argues that without notice, the state has not expressly consented to be
sued under these circumstances.
Plaintiff argues that Defendant has waived this argument because it was not made in the
Rule 50(a) motion. While a party must raise all issues in its Rule 50(a) motion that it wishes to
dispute in its Rule 50(b) motion,68 the Court agrees with Defendant that jurisdictional arguments
may be raised at any time.69 Because sovereign immunity is jurisdictional,70 it cannot be waived.
Although this argument has not been waived, it is wholly without merit. Pursuant to its
power under section five of the Fourteenth Amendment, “Congress abrogated the States’
Eleventh Amendment immunity under Title IX.”71 This is codified at 42 U.S.C. § 2000d-7(a)(1),
which provides that: “[a] State shall not be immune under the Eleventh Amendment of the
Constitution of the United States from suit in Federal court for a violation of . . . title IX of the
Education Amendments of 1972.” It further provides in subsection (a)(2) that “[i]n a suit against
a State for a violation of a statute [including Title IX], remedies (including remedies both at law
and in equity) are available for such a violation to the same extent as such remedies are available
for such a violation in the suit against any public or private entity other than a State.” Because
this Court has found that Plaintiff may properly bring a private right of action for employment
discrimination under Title IX, Defendant may be sued for such a violation.
Defendant’s argument that it was not on “notice” of a private right of action for
employment discrimination based on alleged sexual harassment is also without merit. Although
67

Doc. 208 at 14.

68

See United Int’l Holdings, Inc. v. Wharf (Holdings) Ltd., 210 F.3d 1207, 1228 (10th Cir. 2000); see Fed.
R. Civ. P. 50(a)–(b).
69

Fed. R. Civ. P. 12(h)(3).

70

Pueblo of Jemez v. United States, 790 F.3d 1143, 1151 (10th Cir. 2015) (“The defense of sovereign
immunity is jurisdictional in nature, depriving courts of subject-matter jurisdiction where applicable.”).
71

Franklin v. Gwinnett Cty. Pub. Schs., 503 U.S. 60, 72 (1992).

17

outside the sovereign immunity context, in Jackson,72 the Supreme Court rejected this argument
because “[f]unding recipients have been on notice that they could be subjected to private suits for
intentional sex discrimination under Title IX since 1979, when we decided Cannon.”73 In short,
Plaintiff has an implied private right of action for money damages based on an employment
discrimination claim for alleged sexual harassment under Title IX. Defendant, an entity of the
State of Kansas, has waived sovereign immunity to claims under Title IX as outlined in 42
U.S.C. § 2000d-7(a)(1)–(2). Thus, Defendant is not immune.
c.

Denial of Access to Educational Benefits

Defendant further argues that Plaintiff’s allegations of emotional distress were
insufficient for recovery of damages under Title IX because Plaintiff is required to show a denial
of access to educational programs or activities. The Court briefly discussed its analysis of this
requirement in the context of Defendant’s argument that Title VII displaces relief under Title IX,
concluding that in the employment discrimination context for purposes of Title IX sexual
harassment allegations, denial of educational benefits is not a required showing outside of
student sexual harassment claims.74 For purposes of clarification and analysis, the Court will
expand on the applicable case law to explain why this “denial of access” requirement in the
employment discrimination context under Title IX.

72

In Jackson v. Birmingham Board of Education, the Supreme Court considered the issue of notice in the
context of the Spending Clause’s notice requirement. 544 U.S. 167, 181 (2005). Private Title IX damages actions
are available only if the funding recipient had adequate notice it could be liable for the conduct alleged. Id.
However, this Court finds the issue of notice for purposes of sovereign immunity and notice for purposes of
Spending Clause are analogous.
73

Id.

74

See supra Part II.B.1.a.iii.

18

i.

Case Law Applying Title VII Standards to Title IX

As a threshold matter, the Tenth Circuit holds that Title VII standards should be applied
to a case of employment discrimination brought under Title IX,75 finding “no persuasive reason
not to apply Title VII’s substantive standards regarding sex discrimination to Title IX suits.”76
The Tenth Circuit further elaborated that Title VII is “the most appropriate analogue when
defining Title IX’s substantive standards.”77
Further, there is a body of case law applying Title VII’s substantive standards to Title IX
employment discrimination claims. For example, in Doe v. Mercy Catholic Medical Center, the
Third Circuit considered whether the claims of a medical resident for Title IX retaliation, quid
pro quo sexual harassment, and hostile work environment were cognizable.78 First determining
that there was a private right of action under Title IX,79 the Third Circuit went on to hold that
Title VII standards governed both the retaliation and quid pro quo sexual harassment standards
arising under Title IX.80 In fact, the Third Circuit applied only one Title IX substantive standard
to the plaintiff’s Title IX claims—the additional element of actual notice and deliberate
indifference articulated in Gebser v. Lago Vista Independent School District.81 This substantive
standard is not applied to Title VII sexual harassment claims. The Third Circuit reasoned this

75

Mabry v. St. Bd. of Comm. Colls. & Occupational Educ., 813 F.2d 311 (10th Cir. 1987); see also Gossett
v. Okla. Bd. of Regents for Langston Univ., 245 F.3d 1172, 1176 (10th Cir. 2001).
76

Mabry, 813 F.3d at 316.

77

Id. at 316 n.6 (citation omitted).

78

850 F.3d 545, 558 (3d Cir. 2017).

79

Id. at 560–66.

80

Id. at 563–66 (dismissing the hostile environment claim as time barred).

81

624 U.S. 274, 290 (requiring proof that an “official who at a minimum” had “authority to address the
alleged discrimination and to institute corrective measures on the recipient’s behalf” had “actual knowledge of
discrimination in the recipient’s program” and failed to adequately respond).

19

Title IX standard must apply, given Title IX’s Spending Clause origin, which requires “notice”
of the conduct to the university.82
Notably absent from these cases is any requirement of denial of access to educational
benefits. Indeed, as the Court previously discussed, if a claimant was required to show a denial
of equal access to educational benefits, Title IX would not be applicable to employment
discrimination. For even a teacher or professor, which Defendant seemingly concedes would be
entitled to Title IX protection,83 would not be able to demonstrate a denial of access to
educational benefits within the meaning of Davis v. Monroe County Board of Education.84
Furthermore, Defendant’s reliance on 34 C.F.R. § 106.51, a Department of Education
regulation, is misplaced. This regulation provides a laundry list of employment benefits that
cannot be denied on the basis of sex in an educational program or activity receiving federal
financial aid, including broadly applying to “[a]ny other term, condition, or privilege of
employment.” Of course, this regulation is directly contrary to Defendant’s position that
Plaintiff must show a denial of access to “educational” benefits; nothing in this regulation limits
the reach of Title IX to denial of educational benefits. In fact, the language “terms, conditions,
or privileges of employment” as used in 34 C.F.R. § 106.51(b)(10) is directly lifted from Title
VII.85
Finally, while the Court acknowledges that it applied the denial of access to educational
benefits standard in ruling on the Rule 50(a) motion, the issue was not raised at that stage in the
litigation as Plaintiff did not respond to the Rule 50(a) motion. With the benefit of extensive
82

Mercy Catholic Med. Ctr., 850 F.3d at 565–66.

83

Doc. 245 at 6 (“Again, if a student or faculty member was experiencing discrimination within one of
these operations, thus making it difficult or impossible for that student or educational employee to fulfill their
educational goals, such student or faculty member’s claim would be covered by Title IX.”).
84

526 U.S. 629, 652 (1999).

85

See 42 U.S.C. § 2000e-2(a)(1).

20

briefing in the Rule 50(b) context, the Court agrees with Plaintiff that the systemic effect of
denying the victim access to educational programs or activities standard does not apply in the
Title IX employment discrimination context.
ii.

Application of Title VII Severe or Pervasive Harassment Standard

While Plaintiff is not required to show a denial of access to educational benefits, Title VII
sexual harassment standards dictate what constitutes denial of terms, conditions, or privileges of
employment. “For sexual harassment to be actionable, it must be sufficiently severe or pervasive
to alter the conditions of [the victim’s] employment and create an abusive working
environment.”86 The applicable test for a hostile work environment has both an objective and
subjective component.87 In determining whether an objectively “severe or pervasive” hostile
environment exists, the Tenth Circuit states “it is necessary to look at all the circumstances
involved,” including “the frequency of the discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably
interferes with an employee’s work performance.”88 The objective inquiry focuses on the
perspective of a reasonable person in the plaintiff’s position considering all the circumstances.89
To determine whether the environment was sufficiently severe or pervasive, the court is not
required to find that the offending conduct seriously affected the plaintiff’s psychological wellbeing.90 However, “‘simple teasing,’ . . . offhand comments, and isolated incidents (unless

86

Meritor Sav. Bank v. Vinson, 477 U.S. 57, 67 (1986); Harris v. Forklift Sys. Inc., 510 U.S. 17, 21 (1993).

87

Hernandez v. Valley View Hosp. Ass’n, 684 F.3d 950, 957 (10th Cir. 2012).

88

Chavez v. New Mexico, 397 F.3d 826, 833 (10th Cir. 2005).

89

Morris v. City of Colo. Springs, 666 F.3d 654, 664 (10th Cir. 2012); Fuggett v. Security Transp. Servs.,
Inc., 147 F. Supp. 3d 1216, 1232 (D. Kan. 2015).
90

Nieto v. Kapoor, 268 F.3d 1208, 1219 (10th Cir. 2001) (citation omitted).

21

extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of
employment.’”91
There was sufficient evidence presented at trial that the harassment was sufficiently
objectively “severe or pervasive” to change the terms or conditions of Plaintiff’s employment.
Jana Giles engaged in physical contact with Plaintiff, including hair touching incidents and
Giles’s attempt to rub against Plaintiff while Plaintiff was cleaning a bathroom stall. Although
there was contrary evidence that the hair touching incident was consensual, Plaintiff testified that
it was not. It is not the province of the Court to make credibility determinations. Viewing the
evidence in the light most favorable to Plaintiff, the hair touching incidents were non-consensual.
Further, there was evidence of objectively severe or pervasive harassment. Giles made
numerous sexually charged comments, including asking Plaintiff’s husband how she tastes,
asking Plaintiff about her sex life with her husband, asking Plaintiff if she had been with a
woman, telling Plaintiff she could make her feel better than her husband, and making a “hu-huhu” noise to mimic the female orgasm while telling Plaintiff she had practiced all night for her.
Giles also made sexually charged gestures toward Plaintiff, including wiping her crotch in front
of her. Further, on at least one occasion, Giles sat and waited in Plaintiff’s custodial closet in the
dark, startling Plaintiff when she arrived. Giles greeted Plaintiff, saying Plaintiff had finally
made it. Plaintiff video recorded Cathy Butler Brown wiping her crotch in front of Plaintiff and
telling her to “picture this.” Plaintiff testified that incidents of this nature happened on average
two to three times per week starting in 2012. Viewing the evidence in the light most favorable to
Plaintiff, there was sufficient evidence of an objectively hostile work environment from the
perspective of a reasonable person in Plaintiff’s position.

91

Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998).

22

And, there was sufficient evidence of conduct that was subjectively severe or pervasive.
Although Plaintiff need not prove psychological suffering to recover, she presented ample
evidence that her psychological well-being suffered as a result of the environment at PSU.
Plaintiff testified that the sexually harassing conduct of Giles and Butler Brown affected her
health. She could not eat, felt sick, and felt “gross.” She began having nightmares and had
difficulty sleeping at night. During the day, she suffered from anxiety, experiencing her heart
beating fast, sweating, and nausea. There was also evidence that while at work, Plaintiff would
stop working for short periods of time and sit in her custodial closet, to cope with her anxiety.
Plaintiff testified that after Giles started harassing her, she had to take an increased dosage of
Xanax. While she had suffered panic attacks before the harassment started, Plaintiff testified that
the panic attacks became more severe and that she ranked her anxiety as greater than 10 on a
scale of 1 to 10 following the harassment. Plaintiff testified that she was “scared for her life.”
Sandra Brown, a custodial supervisor senior at PSU, corroborated Plaintiff’s testimony,
describing how Plaintiff was “bubbly,” “fun,” and “talkative,” before the alleged harassment
began, but after it began, Plaintiff stopped talking to others, often cried, acted sad, and seemed
depressed. Sandra Brown observed Plaintiff at work with a red nose and swollen eyes.
Plaintiff’s husband, Rick Fox, who also worked as a custodial specialist at PSU, testified that
during the time period of the harassment, Plaintiff acted sad, cried herself to sleep, and lost
weight. Viewing the evidence in the light most favorable to Plaintiff, there is sufficient evidence
that the harassment was both objectively and subjectively severe or pervasive, and thus was
actionable under Title IX.

23

d.

Actual Notice And Deliberate Indifference

Defendant’s argument that there was insufficient evidence of actual notice to an
appropriate person at PSU is threefold. First, Defendant argues that actual notice was not given
to an appropriate person, namely Johnson, until February 2014. Second, if Endicott and Malle
were appropriate persons to receive reports of sexual harassment, Plaintiff’s statements were too
vague to give them notice. Third, once charged with actual notice, PSU did not act deliberately
indifferent to the allegations of sexual harassment.
To succeed on a Title IX claim, the Supreme Court has held that a claim for money
damages based on sexual harassment may arise under Title IX only if (1) “an official who at a
minimum has authority to address the alleged discrimination and to institute corrective measures
on the [funding] recipient’s behalf has actual knowledge of discrimination in the recipient’s
programs and fails adequately to respond,” and (2) the inadequate response “amount[s] to
deliberate indifference to discrimination.”92 Schools cannot be held vicariously liable for acts of
sexual harassment committed on campus.93 Instead, schools are liable under Title IX for only
their own misconduct, and not just any type of misconduct.94 The school must be found to have
acted with legal culpability known as deliberate indifference.95 This rule imposes liability only
on schools that choose to ignore Title IX’s mandates.96
First, the Court finds that Johnson, PSU’s Director of Equal Opportunity and Affirmative
Action, was not the only appropriate person to report the sexual harassment to in order to put the
university on notice. Indeed, the Tenth Circuit rejects the notion of determining the “appropriate
92

Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998).

93

Escue v. N. Okla.. Coll., 450 F.3d 1146, 1152 (10th Cir. 2006).

94

See id.

95

See id.

96

Murrell v. Sch. Dist. No. 1 Denver, Colo., 186 F.3d 1238, 1247 (10th Cir. 1999).

24

person” based on job title alone.97 And, it is not the standard that victims of sexual harassment
must notify the Title IX coordinator or human resources representative to appropriately be
considered to have put the university on actual notice. Rather, the Tenth Circuit determines the
appropriate person based on whether the position had the ability to halt the sexual abuse.98
While it is undisputed that Johnson had the power to halt the abuse, she had no power to fire,
discipline, or reprimand based on sexual harassment allegations. She testified that she was not a
“disciplinarian” and only could “make recommendations.” Johnson was an appropriate person,
but not the only appropriate person.
Second, the Court finds Malle and Endicott were among the appropriate persons to whom
to report sexual harassment for purposes of Title IX liability. In Murrell v. School District
Number 1 of Denver, Colorado, the Tenth Circuit clarified that “appropriate persons” to report to
for the purposes of Title IX liability depends on whether they exercised control over the harasser
and depends on the context in which the harassment occurred.99 While the Tenth Circuit held the
principal of the school was considered an appropriate person, it also acknowledged that the
“highest-ranking administrator” was not the only person for which Title IX liability could
attach.100 The Tenth Circuit “decline[d] simply to name job titles that would or would not
adequately” satisfy the “appropriate person” standard.101 Instead, it explained that this was
necessarily a fact-based inquiry, focused on whether the official had the authority to halt known

97

Id. at 1247.

98

Id.

99

Id. at 1248.

100

See id. at 1247–48.

101

Id. at 1247.

25

abuse.102 Defendant cites a number of cases requiring the appropriate person to have
responsibility over the entire operation of the school,103 but this is not the standard the Tenth
Circuit has annunciated. Rather, the person needs to have authority to institute corrective
measures.104
Malle, the physical plant supervisor and direct supervisor of Plaintiff, Giles, and Butler
Brown, exercised control over their schedules and assignments.

While Malle did not have the

power to fire or suspend, he was in charge of evaluating employees and had authority to issue
verbal reprimands, as part of PSU’s progressive disciplinary system. Malle was also considered
the shift supervisor, so complaints were to be lodged with him; and Malle testified that he would
take notes on such complaints. Malle further testified that allegations of sexual harassment were
considered an exception to the progressive discipline system, and that he had a duty to report
such allegations to Johnson for investigation. Nonetheless, there was evidence that Malle gave a
verbal reprimand to Butler Brown following the incident where she grabbed her crotch and said
“picture this” to Plaintiff. Indeed, Defendant had PowerPoint105 and training materials on hostile
work environment, which was used to train faculty and staff. These materials stated that
if an employee was feeling harassed, he or she must “[r]eport the behavior to someone who is
authorized to take action to stop the harassment such as your supervisor . . . .”106 Malle had
102

Id. (providing the example of halting abuse through “transferring the harassing student to a different
class, suspending him, curtailing his privileges, or providing additional supervision”).
103

See Warren v. Reading Sch. Dist., 278 F.3d 163, 174 (3d Cir. 2002) (holding principal as appropriate
person to report harassment to while declining to find the school guidance counselor as an appropriate person
because he did not have authority over the accused harasser); Ross v. Univ. of Tulsa, No. 14-484, 2016 WL 1545138
(N.D. Okla. Apr. 15, 2016) (holding campus police were appropriate person because they had the authority to
institute corrective measures aimed at ending harassment); Burtner v. Hiram Coll., 9 F. Supp. 2d 852, 856 (N.D.
Ohio 1998) (holding there was no actual notice to Hiram until student was leaving school, which was unrelated to
the appropriate person standard).
104

Escue v. N. Okla.. Coll., 450 F.3d 1146, 1152 (10th Cir. 2006).

105

Pl.’s Ex. 12.

106

Id.

26

authority to issue corrective measures and thus was an “appropriate person” for purposes of
reporting sexual harassment.
Endicott, the director of custodial services, oversaw all custodial and general services
staff. Endicott had the power to hire, fire, and discipline employees, including Giles and Butler
Brown. She also evaluated each custodial supervisor for PSU, and she signed off on supervisor
evaluations of all employees. Malle testified that complaints were often referred to Endicott
when they were beyond his control. Thus Endicott was an “appropriate person” for purposes of
reporting sexual harassment.
Furthermore, the Court finds that Malle and Endicott were given “actual notice” of sexual
harassment prior to March 2014. Actual notice “requires more than a simple report of
inappropriate conduct . . . [however] the actual notice standard does not set the bar so high that a
[school] is not put on notice until it receives a clearly credible report.”107 For example, the Tenth
Circuit held in Rost v. Steamboat Springs RE-2 School District that the statement “that these
boys were bothering me” was insufficient to put the school on actual notice of harassment.108
But here, without delving into any off-campus conduct to which Defendant argues Title
IX does not cover,109 there was more than sufficient evidence of actual notice of sexual
harassment based solely on reports of the on-campus conduct. Plaintiff testified that in 2012 or
2013, she complained to Malle about Giles’conduct. Plaintiff further testified that she had
complained to Malle sometime before the September 2013 incident in which Malle took she and

107

Escue, 450 F.3d at 1154.

108

511 F.3d 1114, 1119 (10th Cir. 2008).

109

The Tenth Circuit suggests that harassment off school grounds may create liability under Title IX where
the school is in control over the harasser and the environment in which the harassment occurs, and there is a “nexus”
between the out of school conduct and the harassment. Rost v. Steamboat Springs RE-2 Sch. Dist., 511 F.3d 1114,
1121 n.1 (10th Cir. 2008); see also Weckhorst v. Kan. St. Univ., No. 16-2255, 2017 WL 980456(D. Kan. Mar. 14,
2017) (analyzing Tenth Circuit case law regarding off campus conduct and Title IX liability).

27

Giles to Endicott’s office after their altercation. Plaintiff testified that although Malle assured
her that he would tell Endicott, nothing improved, and in fact, the harassment worsened. In
September 2013, Malle witnessed a confrontation between Giles and Plaintiff, and took them to
Endicott’s office. Plaintiff testified that during this meeting, she told Endicott about Giles
rubbing against her in the bathroom stall while she cleaned, touching her hair, and making the
sexual “hu-hu-hu” noise while saying she practiced all night for her. Plaintiff further testified
that she told Endicott that Giles was lusting over her, and that Giles was undressing Plaintiff with
her eyes.
Endicott testified that she first became aware of the conduct ongoing between Plaintiff
and Giles in September 2013 when Malle brought Plaintiff and Giles to her office. Endicott
further testified that Plaintiff never called the complained-of conduct “sexual harassment.”
Endicott testified that Plaintiff mentioned the “hu-hu-hu” sound Giles made that Plaintiff
believed was sexual in nature. Endicott further testified that she then asked Plaintiff if she was
alleging that Giles sexually harassed her, but Plaintiff did not answer. Endicott further testified
that because of Plaintiff’s nonresponse, Endicott did not perceive the conduct as sexual
harassment. Giles’s testimony contradicts Endicott’s testimony about the meeting in Endicott’s
office. Giles testified that at the meeting Plaintiff told Endicott that Plaintiff was alleging sexual
harassment, which prompted Giles to throw her glasses in frustration and suggest Plaintiff and
her meet at the park to have a fist fight. 110
Endicott further testified that Plaintiff did not make another complaint about harassment
until February 2014 when Plaintiff showed Endicott the video of Butler Brown grabbing her
crotch and saying “picture this.” Endicott testified that this was the first time Plaintiff mentioned
110

This was further corroborated in an email sent from Giles to Johnson stating that in the September 2013
meeting “M. Fox said I [Giles] sexually harassed her in McCray Hall.” Pl’s Ex. 20.

28

sexual harassment. Endicott also testified that in the February 2014 meeting, Plaintiff advised
her that Plaintiff had been telling Malle about this conduct for quite some time.
Sandra Brown testified that on another occasion, while she was in Endicott’s office to
make an unrelated complaint, Sandra Brown mentioned the relationship between Giles and
Plaintiff to Endicott. Sandra Brown told Endicott “we all know something is going on” and
“you can see her when she comes through the time clock, something has happened.”111 Butler
Brown suggested to Endicott that the two be split up. Sandra Brown testified that Endicott stated
it was none of Brown’s business. Sandra Brown further testified this while this was the only
time she mentioned the conduct between Giles and Plaintiff to Endicott, she had brought it to
Malle’s attention “at least twice” before. Sandra Brown had told Malle that there was something
going on with Giles and Plaintiff, and it was getting out of hand, to which Malle responded that
Endicott was taking care of it.
Rick Fox testified that after Plaintiff complained to Malle, on five or six occasions, Rick
Fox asked Malle whether he was going to do something to stop the conduct. Rick Fox testified
that he did not use the words “sexually hostile work environment” because he did not know what
that was. Later, Rick Fox complained to Endicott after Malle did nothing to stop the conduct.
And, in February 2014, Rick Fox wrote a letter to Johnson that included many of the sexual
harassment allegations his wife made. Rick Fox’s letter further stated that he was complaining to
Johnson because “Wanda and Kevin [were not] doing anything about” the allegations.112
Viewing all of the testimony and evidence in the light most favorable to Plaintiff, the
Court finds these facts sufficient to support a showing of actual notice to Malle and Endicott
prior to March 2014. There is no requirement that the words “sexual harassment” must be used
111

Doc. 200 at 22:14–16.

112

Pl’s Ex. 10.

29

to put the university on notice. Based on all of the testimony outlined above, there was sufficient
evidence Malle had been told on multiple occasions about the ongoing conduct between Plaintiff
and Giles as early as 2012, including comments about the “hu-hu-hu” noise, hair touching,
questioning about Plaintiff’s sex life, and Giles rubbing against Plaintiff. During the September
2013 meeting in Endicott’s office, Plaintiff put Endicott on actual notice of sexual harassment,
describing conduct including Giles rubbing her body against Plaintiff in a bathroom stall and
making sexual noises and gestures. In fact, this prompted Endicott to question Plaintiff about
whether she was alleging sexual harassment. Testimony from Giles confirmed that at the
September 2013 meeting, Plaintiff alleged and Giles understood Plaintiff to be alleging sexual
harassment. This was not merely an incident where Defendant “should have known” about the
harassment, but rather, Defendant received actual notice of sexual harassment allegations.
Viewing the evidence in the light most favorable to Plaintiff, there was evidence of actual notice
to Malle and Endicott earlier than March 2014, and at the absolute latest in September 2013.
The Court further finds that there is sufficient evidence that having been given actual
notice, Defendant acted with deliberate indifference. A response is deemed to show deliberate
indifference only where the federal funding recipient’s response to the harassment or lack thereof
is clearly unreasonable in light of the known circumstances.113 Thus, a response is deemed to
amount to deliberate indifference where there is an official decision by the recipient not to
remedy the violation.114
There was evidence that prior to September 2013, Plaintiff and Rick Fox had told Malle
about sexually harassing conduct from Giles beginning in 2012. Despite Malle’s assurance that
he was going to involve Endicott, he did not. Nor did Defendant respond when Sandra Brown
113

Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 648 (1999).

114

Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998).

30

put Malle and Endicott on actual notice of issues between Plaintiff and Giles. Viewing the
evidence in the light most favorable to Plaintiff, this was unreasonable, in light of Malle’s duty
per PSU training and policies to document everything, stop the harassment, and/or report it to
Johnson.115
Later, when Defendant was again given actual notice, this time during the September
2013 meeting, Defendant’s only response was to direct Plaintiff to clock out after Giles in order
to avoid confrontation. This was the only “remedial” measure taken. Despite multiple
complaints of conduct constituting “sexual harassment,”116 Defendant performed no
investigation, and Endicott did not report the complaints to Johnson so that Johnson could
investigate. Based on PSU’s policy and training, and information on its website,117 sexual
harassment was to be reported to Johnson. Nor did Defendant take disciplinary measures against
Giles. Thus, as Plaintiff testified, after the September 2013 meeting, the harassing comments got
worse, including Giles calling her a bitch, telling her she smelled like a skunk, and flipping her
off. Malle and Endicott’s failure to report to Johnson, and the sole “remedial” measure of
separation at the time clock, could be viewed as unreasonable in light of the espoused allegations
of sexual harassment made at the meeting.
Defendant was again placed on actual notice in February 2014 when Plaintiff showed
Endicott the video recording of Butler Brown grabbing her crotch. Malle responded by meeting
115

Doc. 201 at 15:7–15.

116

Defendant cites at length Helm v. Kansas,656 F.3d 1277 (10th Cir. 2011), as analogous to the facts of
this case. In Helm, the allegations of sexual harassment were vague, including only allegations that the alleged
harasser made the alleged victim uncomfortable and the relationship had become inappropriate. Id. at 1281. There
were no details involved. Id. The alleged victim also said the matter was resolved, so no action was taken. Id.
Once more specific allegations were made, there were corrective measures taken including an investigation,
disciplinary proceeding, and a reassignment. Here, there were sufficient details of the conduct between Giles and
Plaintiff as well as evidence that the words sexual harassment were used. Yet there was no investigation or
discipline, and the only remedial measure was to have the women clock out separately. Thus, the case is not
analogous.
117

Pl’s Ex. 17.

31

with Butler Brown and taking notes on Butler Brown’s side of the story.118 Malle testified he
told Butler Brown the conduct was inappropriate and that she should not do it again; and Malle
relayed this information to Endicott, who also talked to Butler Brown about the incident. Notes
from their meeting suggested Butler Brown apologized to Endicott, and Endicott cautioned her
that the gesture was inappropriate and should not be repeated. Neither Malle nor Endicott
referred this to Johnson as a complaint of sexual harassment.
Moreover, Johnson’s response in March 2014 could be deemed unreasonable as a matter
of law. As an appropriate person,119 Johnson’s investigation could reasonably be viewed as
deliberately indifferent. Johnson received written complaints in March 2014 from Plaintiff and
Rick Fox that actually used the word “harassment,” and outlined a number of incidents including
the incident in September 2013 meeting, the instance of Butler Brown rubbing her crotch, and
the instances of Giles asking about her sex life, and sitting in Plaintiff’s custodial closet in the
dark.120 Plaintiff suggested Johnson talk to Butler Brown and other witnesses at the timeclock in
order to corroborate her allegations. Yet Johnson did not interview those witnesses for fear it
would cause a “firestorm.”121 Based solely on her communications with Giles, Rick Fox,
Endicott, Malle, and Plaintiff, Johnson decided that Giles committed no sexual harassment. And,

118

Pl’s Ex. 37.

119

Johnson admitted in her testimony that Plaintiff was subject to a sexually hostile work environment
when she came forward to complain to Johnson. This was further corroborated by an audio recording Fox made of a
conversation between she and Johnson, where Johnson admitted as much. Pl’s Ex. 57bb.
120

Pl’s Ex. 4, 10.

121

Defendant cites Rost v. Steamboat Springs RE-2 School District, 511 F.3d 1114, 1122 (10th Cir. 2008),
for the proposition that the school is not charged with interviewing witnesses. However, the Court finds this case
distinguishable. Whereas Rost involved school children, these were adults who were employees and undoubtedly
should be held to a higher standard of conduct. Rost also involved vague allegations that the victim was being
“bothered.” The school did not conduct independent interviews in Rost because the police were called. Here, there
was a handwritten statement outlining the allegations and even stating that harassment was being alleged. Unlike in
Rost, the police never conducted interviews in lieu of Defendant conducting an interview. In light of the
circumstances, refusal to interview any witnesses was a clearly unreasonable response given that Fox’s written
statement included the word “harassment.”

32

Johnson also decided that Plaintiff had exhibited discriminatory conduct and contributed to a
hostile work environment.122
Johnson issued a letter that stated that the complained of conduct was inappropriate and
in violation of PSU’s Notice of Nondiscrimination and Sexual Harassment Policy.123 And as a
“remedy,” Johnson ordered Giles, Rick Fox, and Plaintiff to submit to sexual harassment training
as discipline for mutually creating a hostile environment. Yet during her meeting with Plaintiff
to counsel on sexual harassment, Johnson acknowledged that the conduct Plaintiff experienced
was so pervasive that it altered the condition of Plaintiff’s work environment, and made Plaintiff
uncomfortable and scared to come to work. Unbeknownst to Johnson, Plaintiff was audio
recording their conversation; and the tape recording of Johnson’s admissions was admitted into
evidence.124 Viewing the evidence in the light most favorable to Plaintiff, there was sufficient
evidence of a deliberately indifferent response to allegations of sexual harassment of which
Defendant had actual notice.
2.

Title VII Claim

Defendant moves for judgment as a matter of law on the Title VII claim for five
reasons—(1) Plaintiff failed to prove that the harassment occurred because of her gender; (2)
Plaintiff bootstrapped non-sexual, non-gender based conduct into her sexual harassment claim;
(3) Defendant is not liable for after hour, off campus conduct; (4) Plaintiff failed to prove the
conduct was severe, physically threatening or humiliating, or that it interfered with her work; and
(5) Plaintiff failed to show Defendant had actual or constructive notice of the harassment.

122

Pl’s Ex. 24.

123

Id.

124

Pl’s Ex. 57bb.

33

a.

Harassment Because of Plaintiff’s Gender

Defendant contends it is entitled to judgment as a matter of law because Plaintiff
provided insufficient evidence that the conduct was based on her gender. To bring a claim of
gender discrimination based on a hostile work environment under Title VII, Plaintiff must
establish (1) she is a member of a protected group; (2) she was subject to unwelcome
harassment; (3) the harassment was based on sex; and (4) due to the harassment’s severity or
pervasiveness, the harassment altered a term, condition, or privilege of the plaintiff’s
employment and created an abusive working environment.125 The Supreme Court has held that
both opposite-sex and same-sex sexual harassment is actionable under Title VII, but that such
harassment violates Title VII only when it is “because of sex.”126 Thus, the third element—
harassment based on sex—requires that the animus be based on sex because Title VII does not
establish “a general civility code.”127
After recognizing a cause of action for same-sex sexual harassment, the Supreme Court
laid out three evidentiary routes in which an inference of discrimination because of sex can be
drawn in the hostile work environment context.128 First, a factfinder could infer that the
harassment was motivated by sex if the conduct consisted of proposals of sexual activity and
“there [was] credible evidence that the harasser was homosexual.”129 Second, the plaintiff could
show that she was “harassed in such sex-specific and derogatory terms by another woman as to
make it clear that the harasser [was] motivated by general hostility to the presence of women in

125

Harsco Corp. v. Renner, 475 F.3d 1179, 1186 (10th Cir. 2007); Dick v. Phone Directories Co., 397 F.3d
1256, 1263 (10th Cir. 2005) (citing Seymore v. Shawver & Sons, Inc., 111 F.3d 794, 798 (10th Cir. 1997)).
126

Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79–80 (1998).

127

Id. at 81.

128

Id. at 80–81.

129

Id. at 80.

34

the workplace.”130 Third, the plaintiff could “offer direct comparative evidence about how the
alleged harasser treated members of both sexes in a mixed-sex workplace.”131 Plaintiff takes the
first evidentiary route. Elaborating on the first evidentiary route, the Tenth Circuit holds whether
same-sex harassment is because of the victim’s sex hinges on whether the harasser’s conduct is
motivated by “sexual desire.”132
Defendant argues that Giles’s conduct was not based on Plaintiff’s sex because many of
the comments were non-sexual in nature, such as calling Plaintiff a skunk, telling her she stunk,
and telling Plaintiff that she was going to beat her ass. Although there was evidence of such
non-sexual comments, there was sufficient evidence from which a reasonable jury could find that
Giles’s conduct was motivated by sexual desire, not by mere dislike. Giles was openly
homosexual, as she and her long-term partner Kristi McGowan testified. 133 There was evidence
that Giles rubbed against Plaintiff in the bathroom stall and touched her hair in a sexual manner.
Giles made numerous statements that implicitly could be considered sexual proposals. For
example, Giles stated that she could make Plaintiff feel better than her husband, questioned
Plaintiff’s sexual performance with her husband, and questioned Plaintiff about whether she had
ever been with a woman.
Further, Giles made sexual gestures to Plaintiff. For example, Giles rubbed her crotch at
the timeclock and made a “hu-hu-hu” noise while stating she had been practicing all night for
Plaintiff. Plaintiff testified Giles waited in Plaintiff’s custodial closet with the lights off and
stated she was glad Plaintiff made it and it was about time she got there. Giles did not need to
130

Id. at 80–81.

131

Id.

132

See Dick, 397 F.3d at 1265.

133

Id. (“[T]he fact that the harasser is homosexual may support a finding that her conduct was motivated by
sexual desire.”).

35

explicitly ask Plaintiff to engage in sexual acts or to go on a date, as Defendant suggests.
Viewing the evidence in the light most favorable to Plaintiff, there was sufficient evidence for a
reasonable jury to conclude that Giles’s conduct was based on sexual desire, and that Giles’s
conduct was based on Plaintiff’s sex.
Defendant further argues that because Butler Brown was not proven to be homosexual,
her conduct could not be considered to be based on Plaintiff’s sex. However, the Tenth Circuit
has explicitly stated that the alleged harasser need not be openly homosexual as long as the
conduct was motivated by sexual desire.134 While there was no evidence submitted about Butler
Brown’s sexual orientation, there was sufficient evidence that the February 2014 incident was
motivated by sexual desire. Butler Brown was caught on camera looking at Plaintiff. She
grabbed her crotch and told Plaintiff to “picture this.” Viewing the evidence in the light most
favorable to Plaintiff, this is suggestive of an implicit invitation to engage in sexual conduct
rather than “non-sexual horseplay” as Defendant suggests.
Defendant also argues that the alleged harassment was not based on sex because it was
merely “non-sexual conduct, innocuous events, and/or bullying.”135 The Court rejects
Defendant’s argument that in admitting evidence of non-sexual conduct that underlay Plaintiff’s
retaliation claim, the Court improperly subjected Defendant to liability on the retaliation claim
on which the Court had previously granted summary judgment to Defendant. This argument
lacks merit for several reasons. First, as the Court will explain in more depth below, the Tenth
Circuit allows for consideration of facially gender-neutral abusive conduct.136 Second, the Court
previously explained in its limine order that many of these facially gender-neutral events
134

Id. (“But a plaintiff need not, in every first-evidentiary-route case, establish that her harasser is
homosexual in order to demonstrate that the harassing conduct was motivated by sexual desire.”).
135

Doc. 210 at 5.

136

See O'Shea v. Yellow Tech. Servs., Inc., 185 F.3d 1093, 1097 (10th Cir. 1999).

36

properly relate to both the retaliation claim and the hostile environment sexual harassment claim.
For example, evidence of Giles challenging Plaintiff to a fistfight is relevant to both to the
retaliation claim and the severity or pervasiveness of the harassment. Third, the jury was not
instructed on retaliation, so Defendant is not being held liable on such a theory.
b.

“Bootstrapping” Non-Sexual, Non-Gender Conduct

Defendant next contends it is entitled to judgment because Plaintiff is improperly
“bootstrapping” non-sexual, non-gender based conduct as evidence. Although inartfully drafted,
Defendant’s brief seems to suggest that Plaintiff must meet a threshold for gender-related
comments and conduct before non-gender-related comments and conduct may be considered,
and that the evidence of gender-related conduct was insufficient in detail and frequency to allow
admission of the non-gender-related conduct. Defendant cites no case law supporting its
“threshold” theory, and the Court declines to impose such a requirement absent direction from
the Tenth Circuit.
In fact, facially gender-neutral abusive conduct can support a gender-based hostile work
environment claim when “viewed in the context of other, overtly gender-discriminatory
conduct.” 137 Thus, when a plaintiff introduces evidence of both gender-based and genderneutral harassment, and when a jury, viewing the evidence in context, “reasonably could view all
of the allegedly harassing conduct . . . as the product of sex and general hostility,” then “it is for
the fact finder to decide whether such an inference could be drawn.”138 The Tenth Circuit has
also cautioned that there cannot be a “mathematically precise test” for a hostile work

137

Id. at 1097; see also Chavez v. New Mexico, 397 F.3d 826, 833 (10th Cir. 2005) (“The question then
becomes whether Plaintiffs can use a substantial amount of arguably gender-neutral harassment to bolster a smaller
amount of gender-based conduct on summary judgment. Our precedents say that they can.”).
138

Chavez, 397 F.3d at 833 (citing O’Shea, 185 F.3d at 1102).

37

environment claim.139 Here it was proper to admit evidence of the gender-neutral abusive
conduct, including: (1) Giles challenged Plaintiff to a physical altercation; (2) Giles threw her
eyeglasses across Endicott’s office during the September 2013 meeting; and (3) Giles called
Plaintiff a “bitch,” told Plaintiff she was going to wipe her ass with Plaintiff, and told Plaintiff
she smelled like a skunk.
Moreover, Defendant ignores or downplays nearly all of the gender-related harassment
alleged at trial. As the Court has outlined in detail above, there is more than sufficient evidence
of sexually charged conduct and comments.140 A reasonable jury could credit this evidence
despite the fact that the testimony did not specify the dates or precise frequency of this conduct.
Plaintiff testified that the sexually harassing conduct between her and Giles began in
2012 and continued for approximately two years, until she filed her charge of discrimination
with the EEOC in March 2014. Plaintiff testified incidents would happen two to three times per
week. Plaintiff testified that the harassing conduct worsened in March or April 2013. Sandra
Brown corroborated this testimony when she testified that Giles would harass Plaintiff two to
three nights a week. Sandra Brown testified this happened in 2013 and 2014, and she estimated
this went on for a year and a half. Taken together, in the light most favorable to Plaintiff, there
was sufficient evidence of overtly gender-related sexual comments and conduct. Plaintiff
presented specific examples of sexually charged conduct and comments, identified general time
frames of the conduct, and provided relevant content and context of these comments.141

139

Hernandez v. Valley View Hosp. Ass’n, 684 F.3d 950, 957 (10th Cir. 2012) (citing Harris v. Forklift Sys.
Inc., 510 U.S. 17, 22 (1993)).
140

See supra Part II. B.1.c.ii; II.B.2.a (outlining testimony relating to sexually charged conduct and
comments, including non-consensual hair touching, rubbing against Plaintiff in the bathroom, sexually charged
comments, and Giles wiping her crotch in front of Plaintiff).
141

Compare Hernandez, 684 F.3d at 959 (finding sufficient evidence of hostile work environment where
plaintiff was giving specific examples of her supervisors’ racial jokes, identifying general time frames, and
providing the relevant content and context of these comments) with Ford v. West, 222 F.3d 767, 777 (10th Cir.

38

c.

Off-Campus, After-Hour Conduct For Title VII Liability

Defendant also contends it is entitled to judgment as a matter of law as to all off-campus,
after-hours conduct. Defendant refers to: (1) evidence regarding the conduct of Kristi
McGowan, Giles’s long-time partner, because McGowan was a non-employee, and her conduct
was off-campus; and (2) evidence regarding the February 21, 2014 incident where Giles and
McGowan were at and/or near the Fox home.
Defendant does not cite case law supporting its argument that conduct occurring outside
of the office cannot be considered for purposes of Title VII. Rather, Defendant seeks to
distinguish Meritor Savings Bank FSB v. Vinson,142 a Title VII sexual harassment hostile work
environment case. In Meritor, the Supreme Court found proper the consideration of a number of
the allegations related to the supervisor-harasser’s conduct after business hours and outside of
the workplace.143 Defendant argues Meritor is distinguishable because the victim and harasser in
Meritor were in a supervisor-supervisee relationship and the harassment had a nexus to work.
But, while Meritor is factually distinguishable, the general proposition that after-work and outof-office conduct may be considered applies in this case.
Although Giles and Plaintiff did not have a supervisor-supervisee relationship like in
Meritor, the February 21 off-campus and after-hours incident certainly had a work nexus. Giles
and McGowan were on campus when Rick Fox and Plaintiff got off work. McGowan flashed
her lights at the Foxes on campus, and Giles pulled up alongside their car. Plaintiff and Rick Fox
left the campus, stopped at a gas station, and continued home. When they arrived home,
McGowan was waiting in her vehicle, in front of the Foxes’s home, while Giles was in her own
2000) (finding insufficient allegations of harassment where the plaintiff “baldly assert[ed] he was continuously
subjected to racial slurs,” and provided no record citations to any “content, context or date of such slurs.”).
142

477 U.S. 57 (1986).

143

Id. at 59–60.

39

vehicle, sitting at the end of the Foxes’ street.144 McGowan and Rick Fox got into an altercation
in the Foxes’ driveway, and Plaintiff called the police. The altercation stemmed from events in
the workplace earlier that day; Endicott had told Giles that Plaintiff was accusing her of sexual
harassment. Furthermore, Rick Fox testified that during his altercation with her, McGowan was
on the phone with Giles and he could hear them talking to each other. Further, Plaintiff testified
that she reported this incident to Endicott at work, but Endicott stated nothing could be done as
this was off campus, outside of work hours, and involved a non-employee. Viewing the
evidence in the light most favorable to Plaintiff, the Court finds there was a nexus between this
conduct and the workplace as the harassing conduct began on campus and Giles, an employee,
was nearby and talking with her partner McGowan throughout McGowan’s encounter with
Plaintiff and Rick Fox.
Further, Defendant’s argument that employees could not be disciplined for off-campus
conduct is without merit. Endicott testified an employee could lose his or her job for off-campus
conduct. For example, in the September 2013 meeting in Endicott’s office, Giles told Plaintiff
that they should go to a park and have a fist fight. Endicott warned Giles that she could lose her
job for such conduct.
Finally, Defendant points to this Court’s ruling granting Defendant summary judgment
on the retaliation claim, as supporting Defendant’s argument that Endicott and Malle had no
control over McGowan’ conduct during the February 21, 2014 altercation. In the context of the
previously dismissed retaliation claim, this Court stated:
Similarly, no reasonable jury could find that Malle and Endicott’s response when the
Foxes told them that McGowan came to their house amounted to encouragement of
McGowan’s behavior or disregard for Plaintiff’s complaint. Rather, they expressed their
belief that they could not discipline Giles for behavior by her girlfriend that occurred
144

Rick Fox and Martha Fox both testified that Giles was at the end of the street. Doc. 200 at 86:12–14;
Doc. 201 at 115:22–23.

40

outside of the workplace. Furthermore, although Giles was in her car down the street
during the interaction between Rick Fox and McGowan, any retaliatory behavior during
this interaction was by McGowan, who was not a PSU employee and over whom Malle
and Endicott had no authority.145

But this reasoning was in the context of consideration of the retaliation claim. This incident may
still properly be considered for the hostile work environment sexual harassment claim because it
goes to the severity and physically threatening nature of the environment. Given that Giles was a
part of the incident and it was immediately following work, this incident should not be
disregarded as a matter of law as it was undoubtedly relevant to the environment.
d.

Severe, Physically Threatening or Humiliating Conduct

Plaintiff must show that the harassment was objectively and subjectively so severe or
pervasive that it altered a term, condition, or privilege of her employment.146 Whether the
harassment is objectively “severe or pervasive” is determined from the totality of the
circumstances after “considering such factors as ‘the frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee’s work performance.’”147 This objective
inquiry focuses on the perspective of a “reasonable person in the plaintiff’s position, considering
all the circumstances,”148 and requires “careful consideration of the social context in which
particular behavior occurs and is experienced by its target.”149
By requiring a showing of a workplace permeated by severe or pervasive discriminatory
conduct, the Supreme Court struck a balance between two extremes, creating “a middle path
145
146

Doc. 127 at 25.
Morris v. City of Colo. Springs, 666 F.3d 654, 664 (10th Cir. 2012).

147

Chavez v. New Mexico, 397 F.3d 826, 833 (10th Cir. 2005) (quoting O’Shea v. Yellow Tech. Servs., Inc.,
185 F.3d 1093, 1098 (10th Cir.1999)).
148

Morris, 666 F.3d at 664 (quoting Harsco Corp. v. Renner, 475 F.3d 1179, 1187 (10th Cir. 2007)).

149

Id. (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998)).

41

between making actionable any conduct that is merely offensive and requiring the conduct to
cause a tangible psychological injury.”150 In so doing, the Supreme Court excluded from
actionable conduct that which is “the ordinary tribulations of the workplace, such as the sporadic
use of abusive language, gender-related jokes, and occasional teasing,” because Title VII was not
meant to be a “general civility code.”151 “‘[S]imple teasing,’ . . . offhand comments, and isolated
incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and
conditions of employment.’”152 On the other hand, conduct need not be so severe or pervasive
that it seriously affects a plaintiff’s psychological well-being.153 While the Court has already
found there was sufficient evidence of the severity or pervasiveness of the harassment in the
Title IX context, the Court will expand on some of these findings and address a number of
Defendant’s arguments in the briefing.
Defendant argues that there is evidence of only one incident of physical contact between
Giles and Plaintiff, the hair touching incident. Defendant argues the lack of physical contact
alone makes the conduct not severe enough to be actionable. But the Tenth Circuit has held the
opposite.154 Defendant further argues that an objective, reasonable person would not consider
the incidents of hair touching offensive, because it was done in a non-sexual manner. But the
context of the incident must be considered.155 While hair touching may be done in a non-sexual
manner, here Plaintiff testified that Giles had previously made sexual comments to her. In light
of these circumstances, what otherwise might be a non-sexual gesture, like hair touching, may
150

Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993).

151

Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998).

152

Id. (citation omitted).

153

Nieto v. Kapoor, 268 F.3d 1208, 1219 (10th Cir. 2001) (citation omitted).

154

Smith v. Nw. Fin. Acceptance, Inc., 129 F.3d 1408, 1416–17 (10th Cir. 1997) (stating that the plaintiff
was “not required to produce evidence of physical abuse or contact to establish a hostile work environment”).
155

Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81–82 (1998).

42

become sexualized. Although there was contrary evidence that the hair touching incident was
consensual, the credibility of the witnesses was within the province of the jury, not the Court.
Thus, in viewing the hair touching incident in the light most favorable to Plaintiff, there was
credible evidence that the hair touching was non-consensual and sexual in nature in light of the
context. Moreover, there was other evidence of physical contact. 156 Plaintiff testified that Giles
rubbed against her in the bathroom stall.
Even if there was no evidence of physical contact, there is ample evidence of comments
and other conduct of an overtly sexual nature.157 To the extent that Defendant asks this Court to
disregard these statements as fabricated, untrue, or contradicted by other evidence, that is
improper, as credibility determinations are the province of the jury. Moreover, beyond the
overtly sexualized conduct and comments, there was also evidence of gender-neutral
harassment.158 Contrary to Defendant’s baseless characterizations, there were a number of
incidents that could reasonably be viewed as threatening, including: Giles sitting in her car at the
top of the Foxes’ street after Giles followed them home from work, Giles threatening to wipe her
ass with Plaintiff during an incident that almost turned into a physical altercation, Giles telling
Plaintiff she smelled like a skunk, and Giles calling Plaintiff a bitch. These are all events that
show both the hostility and threatening nature of the environment which a reasonable person
could view as humiliating and threatening. Collectively, the evidence of the sexual physical
156

Further, to the extent that physical contact strengthens Plaintiff’s case, there was evidence of other
physical contact between Giles and Plaintiff. Giles rubbed against Plaintiff in a bathroom stall in McCray Hall.
Defendant invites the Court to find this as “manufactured” testimony, but it was for the jury to decide the credibility
of Plaintiff’s testimony. Viewing this evidence in the light most favorable to Plaintiff, this was non-consensual,
intentional, physical contact of a sexual nature.
157

See supra Part II. B.1.c.ii; II.B.2.a (outlining Plaintiff’s testimony that Giles would wipe her crotch at
the timeclock, Giles asked Plaintiff about her sexual performance with her husband, Giles asked Plaintiff whether
she had been with a woman, Giles stated she wanted to taste Plaintiff, Giles made a “hu-hu-hu” noise while stating
she had practiced it all night for her, Giles stated she could make Plaintiff feel better than her husband, and Butler
Brown wiped her crotch and told Plaintiff to “picture this”).
158

See supra Part II.B.2.b.

43

touching, the sexually overt conduct and comments, and the gender-neutral conduct and
comments shows an objectively severe or pervasive hostile environment.
Defendant further contends Plaintiff did not subjectively experience a severe or pervasive
environment because it was stipulated that Plaintiff continued receiving “satisfactory” work
performance evaluations. While this is a factor to consider in the objective inquiry into the
severity of the environment, this does not mean Plaintiff did not subjectively experience a severe
or pervasive environment. It is undoubtedly possible for a person to be depressed and scared at
work while still working to maintain employment. As explained in the Title IX discussion
above, there was evidence that Plaintiff had heightened anxiety, depression, sleeplessness, and
weight loss during the harassment. Sandra Brown and Rick Fox corroborated the difference in
Plaintiff’s personality pre-harassment and post-harassment. Plaintiff testified that she often had
to take breaks during work and sit in her custodial closet to escape. Even that coping mechanism
was impaired when Giles waited uninvited for Plaintiff in Plaintiff’s darkened custodial closet.
There is no requirement that Plaintiff seek treatment in order to show she subjectively
experienced the hostile environment. Her testimony along with the corroborating witnesses is
more than sufficient evidence of Plaintiff’s subjective experience of a hostile environment.
Defendant, without citation, argues that Plaintiff has not met the frequency or specificity
requirements for Title VII as to the allegations of harassment between the September 2013
meeting with Endicott and February 21, 2014 when Endicott told Giles that Plaintiff was
accusing her of sexual harassment. Once again, this argument is contradicted by the record.
Plaintiff testified the conduct got worse during this period.159 Giles would “flip-off” Plaintiff
and say curse words. She would wipe her crotch, and she would make the “hu-hu-hu” noise.

159

Doc. 200 at 77:14.

44

Plaintiff testified Giles called her a bitch and said she smelled like a skunk. Butler Brown also
harassed Plaintiff. Plaintiff testified this occurred two to three times a week, which Sandra
Brown corroborated. There was sufficient evidence that the harassment was steady throughout
the period between September 2013 and May 2014.
Moreover, a reasonable jury could also find that Plaintiff experienced both a subjectively
and objectively severe or pervasive hostile environment that altered the terms and conditions of
her employment because Johnson, Defendant’s Title IX coordinator, agreed as much. In an
audio recording Plaintiff surreptitiously made during their meeting, Johnson acknowledged that
Plaintiff was being sexually harassed and that there was a sexually hostile work environment.160
Although Defendant argues this tape was improperly admitted and taken out of context,
Johnson’s deposition testimony and in-court testimony was consistent with Johnson’s taperecorded statements.161 Thus, viewing the evidence in the light most favorable to Plaintiff, there
was sufficient evidence of an objectively and subjectively hostile environment that altered the
terms and conditions of Plaintiff’s employment.
e.

Actual or Constructive Notice and Inadequate Response

Finally, to succeed on her Title VII claim, Plaintiff must also show that PSU “had actual
or constructive knowledge of the hostile work environment but did not adequately respond to
notice of the harassment.”162 Actual knowledge will be demonstrable in most cases where the
plaintiff has reported harassment to management-level employees.163 Constructive knowledge
will be demonstrable where the pervasiveness of sexual harassment can properly lead to an
160

Pl’s Ex. 57.

161

See, e.g., Doc. 201 at 48: 17 (“I agree that it was a hostile environment.”); Doc. 201 at 48:4–13 (stating
in deposition that Fox was subjected to a sexually hostile work environment that was pervasive enough to change
the nature of her work environment).
162

Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 673 (10th Cir. 1998).

163

Id.

45

inference of knowledge.164 To determine whether a response is adequate, an employer is not
strictly liable for all harassment of which it had actual or constructive knowledge.165 Rather, it
may discharge its obligation by taking appropriate remedial or preventative action “reasonably
calculated to end the harassment.”166 If the harassment does not stop, the court may “consider
the timeliness of the plaintiff’s complaint, whether the employer unduly delayed, and whether
the response was proportional to the seriousness and frequency of the harassment.”167 The Court
has found sufficient evidence to meet the higher standard of actual notice and deliberate
indifference for purpose of Title IX.168 Because this is a higher standard, the Court incorporates
that discussion by reference and finds there is sufficient evidence of actual notice and an
inadequate response for purposes of Title VII. 169
III.

Motion for New Trial or in the Alternative Remittur
A.

Standard for Motion for New Trial

Under Federal Rule of Civil Procedure 59(a), a court may grant a new trial on all or some
of the issues on motion of a party “after a jury trial, for any reason for which a new trial has

164

Id.

165

Id. at 676.

166

Id. at 675–76.

167

Id. at 676.

168

See supra Part II.B.1.d.

169

Defendant suggests that this Court has already found Defendant’s response was reasonable because at
summary judgment, this Court ruled Defendant did not condone or encourage Gile’s behavior. This finding was
made in relation to the retaliation claim, which has different standards. This Court has not ruled upon the
sufficiency of Defendant’s response for purposes of actual or constructive notice and whether its response was
reasonable. In fact, this was a genuine issue of material fact at summary judgment. Doc. 127 at 22–23 (“Whether
PSU's response to Plaintiff's report was adequate depends on when PSU had notice of her complaint. If Plaintiff
complained to Malle repeatedly and reported sexual harassment in September 2013, it would appear that PSU did
not adequately investigate her complaint since it did not begin an investigation until her February 2014 report. If, on
the other hand, her first report of sexual harassment was on February 19, 2014, it will be a question for a jury to
determine whether the investigation conducted by Johnson was adequate.”). Defendant’s attempt to twist this
Court’s wording and findings is not well received. Thus, although Malle and Endicott may not have condoned
Giles’s behavior, this does not mean the response was reasonable in light of the allegations of sexual harassment.

46

heretofore been granted in an action at law in federal court.”170 Motions for new trial are
committed to the sound discretion of the district court.171 Courts do not regard motions for new
trial with favor and only grant them with great caution.172
“If ‘a new trial motion asserts that the jury verdict is not supported by evidence, the
verdict must stand unless it clearly, decidedly, or overwhelmingly against the weight of the
evidence.’”173 In reviewing a motion for new trial, the Court views the evidence in the light
most favorable to the prevailing party.174 If a new trial motion is based on an error at trial, the
court cannot grant the motion unless the error prejudiced the party’s substantial rights.175
B.

Standard for Motion for Remittitur

The use of remitter is committed to the discretion of the trial court.176 Remittitur is
warranted when an award of damages shocks the judicial conscience and raises an irresistible
inference that passion, prejudice, corruption or other improper cause invaded the trial.177
Defendant bears the heavy burden of demonstrating that the verdict was “clearly, decidedly, or
overwhelmingly against the weight of the evidence.”178

170

Fed. R. Civ. P. 59(a)(1)(A).

171

See Unit Drilling Co. v. Enron Oil & Gas Co., 108 F.3d 1186, 1193 (10th Cir. 1997).

172

Franklin v. Thompson, 981 F.2d 1168, 1171 (10th Cir.1992).

173

M.D. Mark, Inc. v. Kerr–McGee Corp., 565 F.3d 753, 762–63 (10th Cir. 2009) (quoting Anaeme v.
Diagnostek, Inc., 164 F.3d 1275, 1284 (10th Cir. 1999)).
174

Griffin v. Strong, 983 F.2d 1540, 1543 (10th Cir. 1993).

175

See Henning v. Union Pac. R.R., 530 F.3d 1206, 1216–17 (10th Cir. 2008) (citing Fed. R. Civ. P. 61).

176

Blanke v. Alexander, 152 F.3d 1224, 1236 (10th Cir. 1998).

177

See Prager v. Campbell Cty. Mem’l Hosp., 731 F.3d 1046, 1062 (10th Cir. 2013); Capstick v. Allstate
Ins. Co., 998F.2d 810, 820 (10th Cir. 1993).
178

Blanke, 152 F.3d at 1236 (citations and quotations omitted).

47

C.

Discussion

Defendant’s motion for new trial identifies a laundry list of alleged trial errors, as well as
alleged errors in various pretrial rulings. These errors fall into five categories: (1) double
recovery, (2) excessive verdict/ remittitur, (3) improperly admitted evidence leading to prejudice,
(4) admission of an audio recording, and (5) jury instructions. Each category of alleged error
will be addressed in turn.
1.

Double Recovery

The jury awarded Plaintiff $100,000 on the Title IX claim and $130,000 on the Title VII
claim. Defendant contends that Plaintiff impermissibly double recovered for her Title IX and
Title VII claim because both claims are based on the same operative facts. Defendant alleges
that Plaintiff is seeking redress for emotional distress from sexual harassment under Title VII and
Title IX, so she may be remedied under only one statute.
The issue of whether an award is duplicative is a question of fact, which is reviewed for
clear error.179 An error is clear only if the court’s finding is without factual support in the record
or if, after reviewing all the evidence, there is a firm and definite conviction that a mistake has
been made.180 Double recovery “dictates that ‘in the absence of punitive damages a plaintiff can
recover no more than the loss actually suffered,’” and thus, when a plaintiff seeks compensation
for wrongs committed, the plaintiff should be made whole for the injuries, not enriched.181 If
two claims “arise from the same operative facts, and seek identical relief, an award of damages

179

J.M. v. Hilldale Indep. Sch. Dist. No. 1-29, 397 F. App’x 445, 460 (10th Cir. 2010) (citing N. Am.
Speciality Ins. Co. v. Britt Paulk Ins. Agency, Inc., 579 F.3d 1106, 1113 (10th Cir. 2009)).
180

N. Am. Specialty Ins. Co., 579 F.3d at 1113.

181

Medina v. District of Columbia, 643 F.3d 323, 326 (D.C. Cir. 2011) (quoting Kassman v. Am. Univ., 546
F.2d 1029, 1033 (D.C. Cir. 1976) (per curiam)).

48

under both theories will constitute double recovery.”182 A jury, however, is not prohibited from
allocating a single damages award between two distinct theories of liability.183 Because a
reviewing court’s role under the Seventh Amendment is “to reconcile and preserve whenever
possible” a jury verdict, the court must start with a presumption that the damages awards were
not duplicative.184 Thus, the question here is whether Plaintiff was unjustly enriched by being
granted damages for sexual harassment under both Title IX and Title VII.
Title IX and Title VII are two distinct theories of liability. Title VII and Title IX protect
two different rights. As the Supreme Court explained in Gebser,
Title VII applies to all employers without regard to federal funding and aims broadly to
“eradicat[e] discrimination throughout the economy.” Title VII, moreover, seeks to
“make persons whole for injuries suffered through past discrimination.” Thus, whereas
Title VII aims centrally to compensate victims of discrimination, Title IX focuses more
on “protecting” individuals from discriminatory practices carried out by recipients of
185
federal funds.

While many elements of Title VII and Title IX claims overlap,186 there are some distinctions
even in the elements of the claim. For instance, Title IX applies an actual notice and deliberate
indifference standard where Title VII has an actual or constructive notice and adequate remedial
response.
The jury’s award of a net total of $230,000 is consistent with the low end of the total
request for recovery made by Plaintiff’s counsel during closing. He stated in his closing
arguments, “I’m going to suggest a number to you that—I base it on cases we’ve had, similar

182

J.M., 397 F. App’x at 460 (citation omitted).

183

Ridgell-Boltz v. Colvin, 565 F. App’x 680, 684 (10th Cir. 2014); see also Teutscher v. Woodsoon, 835
F.3d 936, 954 (9th Cir. 2016) (citing Medina, 643 F.3d at 326; Indu Craft, Inc. v. Bank of Baroda, 47 F.3d 490, 497
(2d Cir. 1995)).
184

Matrix Grp. Ltd. v. Rawlings Sporting Goods Co., 477 F.3d 583, 592 (8th Cir. 2007) (citing Indu Craft,
Inc., 47 F.3d at 497).
185

Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 286 (1998).

186

See Mabry v. St. Bd. of Comm.Colls. & Occupational Educ., 813 F.2d 311, 316 (10th Cir. 1987).

49

ones, just a range and—of cases in this area of, you know, about $230,000 to $350,000.”187
While it is possible that the jury impermissibly compensated Plaintiff twice for her emotional
distress resulting from sexual harassment, it is equally rational to believe that the jury found that
Plaintiff suffered $230,000 worth of injuries and allocated the amount between the two distinct
theories of liability, one for Title IX and one for Title VII.188 Defendant has not shown the Court
that the evidence of double recovery is so in its favor that it was clear error.
2.

Excessive Verdict/ Remittitur

Defendant requests remittitur or a new trial because the damage award was excessive in
light of the evidence of emotional distress damages. Defendant first argues that the evidence of
emotional or mental distress Plaintiff presented is insufficient to justify the jury’s damage award.
Defendant next argues that the verdict is excessive because the alleged harassment, which
included “almost no” allegations of physical harassment, was not severe. The Court has already
twice addressed and found that there was evidence of physical harassment, and even if there
were no physical harassment, the overtly sexual and non-sexual harassment was severe and
pervasive.189 However, the Court will address whether emotional distress evidence warrants the
$230,000 damage award.

187

Doc. 202 at 17:4–7

188

See Indu Craft, Inc., 47 F.3d at 497 (allowing award of $2 million on breach of contract claim and $1.25
million on tort claim redressing the same wrongdoing because expert testified that net total of $3.25 million worth of
damage).
189

See supra Part II.B.1.c. (discussing severity or pervasiveness of hostile environment in Title IX context),
II.B.2.d. (discussing severe, physically threatening, humiliating nature of conduct in Title VII context); see also
Smith v. Nw. Fin. Acceptance, Inc., 129 F.3d 1408, 1416–17 (10th Cir. 1997) (stating that the plaintiff was “not
required to produce evidence of physical abuse or contact to establish a hostile work environment”). The Court
declines to reconsider its severity or pervasiveness analysis by applying the factors enumerated in Blangsted v.
Snowmass-Wildcat Fire Protection District, 642 F. Supp. 2d 1250, 1257 (D. Colo. 2009), as Defendant requests.
This does not comport with Tenth Circuit precedent.

50

Defendant argues this case is comparable to Hughes v. Regents of University of
Colorado190 and Wulf v. City of Wichita.191 In Hughes, the plaintiff received a $125,000 award
in a Title VII sexual discrimination case where the plaintiff was “bumped” to a different position
with less responsibility yet equal pay, hours and benefits based on her gender.192 The verdict
reflected damages for emotional distress, pain, suffering, and mental anguish.193 There was no
evidence concerning economic loss.194 The emotional distress evidence was based solely on
plaintiff’s own testimony.195 The plaintiff testified that she never sought treatment for emotional
or physical problems.196 The judge found that this verdict was excessive and remitted the verdict
to $50,000 because her “bumped” position was nearly equivalent to the old position and she
suffered distress equivalent to that of losing any job.197
In Wulf, the Tenth Circuit held that an award of $250,000 in damages for emotional
distress was excessive and remanded the case for reconsideration and an award of damages not
to exceed $50,000.198 In that case, a former police officer brought a civil rights action against the
city and its administrators following his termination.199 The plaintiff in that case testified that, as
a result of defendant's behavior, his job was “very stressful,” and he was angry, depressed,
scared, and frustrated. 200 Wulf's wife testified that he was under “tremendous emotional strain”
190

967 F. Supp. 431 (D. Colo. 1996).

191

883 F.2d 842 (10th Cir. 1989).

192

967 F. Supp. at 433, 438.

193

Id. at 437.

194

Id.

195

Id.

196

Id.

197

Id.

198

883 F.2d 842, 875 (10th Cir. 1989).

199

Id.

200

Id.

51

and that they experienced significant financial difficulties.201 Recognizing the lack of descriptive
evidence of emotional distress, the Tenth Circuit held that, although some award was warranted
for emotional damages, $250,000 was clearly excessive.202 The Wulf court looked to other
awards given in connection with alleged emotional damages and held that $50,000 was the
maximum reasonable award in that case.203
The Court finds this case distinguishable from Hughes and Wulf, which are both more
than twenty-year-old cases.204 Both parties seem to agree that Plaintiff’s $230,000 award
necessarily reflects damages for emotional distress, pain, suffering, and mental anguish. There
was no evidence concerning diminution in salary, decreased benefits, or other similar economic
loss. Plaintiff testified in detail to increased use of anxiety medication and severe physical
manifestations of her emotional distress, including weight loss, sleeplessness, and depression.
Although Plaintiff’s work performance did not suffer, Plaintiff testified she was scared to go to
work, and she often took breaks to be alone in her custodial closet. Giles was apparently aware
of this, for when Plaintiff unwittingly entered her darkened custodial closet, Giles was waiting

201

Id.

202

Id.

203

See id.

204

Defendant also cited a number of “more recent” cases for the proposition that remittitur is warranted.
However, the Court finds these cases distinguishable. Cline v. Walmart Stores, Inc., 144 F.3d 294 (4th Cir. 1998)
(remitting a jury award in a demotion case to $10,000 from $117,500 where there was no evidence of physical
symptoms, no evidence of medication, no evidence of an inability to cope at work, and only suggestions of
emotional trauma); MacMillan v. Millenium Broadway Hotel, 873 F. Supp. 2d 546, 563 (S.D.N.Y. 2012) (remitting
a jury award in a racial hostile work environment case from $125,000 in emotional distress damages to $30,000
where no evidence of medical treatment, physical manifestations, or impact on his work ability, and the only
emotional distress testimony was that the plaintiff felt “horrible”); Dotson v. City of Syracuse, No. 04-CV-1388,
2011 WL 817499, at *22 (N.D.N.Y. Mar. 2, 2011) (remitting a jury award in a retaliation case from $450,000 to
$50,000 where there was not substantial corroborating testimony and the plaintiff suffered a one-time occurrence
that was not ongoing or continuous); Vera v. Alston Power, Inc., No 12-CV-00382, 2016 WL 3014614, at *11 (D.
Conn. May 24, 2016) (remitting a jury award in retaliation case from $500,000 to $125,000 where the plaintiff was
the only witness to testify about emotional distress, general and conclusory terms described the distress, and she
offered no proof physical manifestations); McInnis v. Town of Weston, 458 F. Supp. 2d 7, 19 (D. Conn. 2006)
(remitting a jury award in retaliation case of $860,000 to $150,000 where the plaintiffs never testified to any
physical manifestations and there was no corroborating testimony).

52

there, to sexually harass her. Plaintiff was not the only person testifying to her emotional
distress. Rick Fox, who both worked at PSU and lived with her, corroborated her testimony.205
Rick Fox testified Plaintiff’s children and grandchildren noticed her behavior change, and that
his and Plaintiff’s children refused to bring their grandchildren over for fear of Giles’s threats to
Plaintiff. Her emotional distress was further corroborated by Brown, who testified that she went
from happy to unhappy during the period of harassment. Plaintiff admitted she did not seek
counseling or medical treatment, but she did increase her dosage of Xanax.206
Plaintiff also faced a different form of discrimination than the plaintiff in Hughes, who
was “bumped” to a different job, and in Wulf, who was fired in retaliation for writing a letter to
have the police department investigated. While the plaintiffs in Wulf and Hughes faced one-time
events, Plaintiff faced intentional hostile work environment sexual harassment for nearly two
years. Her job prior to the sexual harassment was nothing like the job during the sexual
harassment. She faced physical sexual harassment, overt sexual comments and conduct, and
threats sometimes multiple times a week, changing the terms and conditions of her employment
over the course of two years. Plaintiff attempted to address this with her managers who either
did nothing, asked her to clock in at a different time than her harasser, or in the case of Johnson,
punished her as well as her harasser. This is an entirely different set of circumstances than
Hughes and Wulf, which warrants a much larger award.

205

Defendant extensively argues Rick Fox was not credible because he stood to gain financially from the
trial. The Court does not consider such an argument as it is an improper credibility determination at the post-trial
stage. Griffin v. Strong, 983 F.2d 1540, 1543 (10th Cir. 1993).
206

Defendant argues that Plaintiff did not have corroborating medical testimony. However, this is not
required, and the jury instruction says as much. Jury Instruction No. 13 (“Evidence of mental anguish need not be
corroborated by doctors, psychologists . . . .”).

53

The Court finds the more recent case of McInerney v. United Airlines207 instructive. In
McInerney, the jury awarded in a Title VII retaliation case compensatory damages in the amount
of $3 million, which were remitted by the Tenth Circuit to the statutory cap of $300,000. 208 The
Tenth Circuit moved away from its approach in Wulf of comparing awards in other cases, and
rather, it cautioned that courts should look to the propriety of the emotional distress award.209
The plaintiff testified that she was devastated and humiliated by her termination, and she had lost
confidence in herself after losing her eleven-year career with United.210 Although the plaintiff’s
testimony about her suffering was not “exceedingly graphic or detailed,” the court held it formed
a sufficient basis for the damages award.211
Using the Tenth Circuit’s guidance in McInerney, the Court is not persuaded by
Defendant’s citations to awards in other cases. Rather, as the Tenth Circuit has cautioned, the
focus should be on whether the compensatory damage was excessive in relation to Plaintiff’s
injury. As the Court has explained above multiple times in detail, there is more than sufficient
evidence of severe emotional distress with physical manifestations. Thus, viewing the $230,000
award in relation to Plaintiff’s injury, the award was not excessive.212
3.

Improper or Prejudicial Evidence or Arguments

Defendant seeks a new trial on the basis of evidence and argument that it contends were
improper and prejudicial. Specifically, Defendant alleges nine errors in the admission of
207

463 F. App’x 709 (10th Cir. 2011).

208

Id. at 723.

209

Id. (citing Smith v. Nw. Fin. Acceptance, Inc., 129 F.3d 1408, 1416–17 (10th Cir. 1997) (considering
the nature of the remarks made to the plaintiff, the nature of the harm suffered by the plaintiff, and the context of the
discriminatory behavior); Malloy v. Monahan, 73 F.3d 1012, 1017 (10th Cir. 1996) (determining that “the award
was adequately grounded in the evidence”); Fitzgerald v. Mountain States Tel. & Tel. Co., 68 F.3d 1257, 1261,
1265–66 (10th Cir. 1995) (determining that damages awards were excessive based on a review of the record)).
210

Id.

211

Id. at 723–24.

212

See also Smith, 129 F.3d at 1416–17 (upholding a $200,000 award in a sexual harassment case).

54

evidence or the allowance of certain statements by Plaintiff’s counsel: (1) Plaintiff referring to
Defendant as “the State,” (2) Plaintiff referring to the Constitution and the Bible, (3) Plaintiff
suggesting an amount to compensate, (4) the manner in which Plaintiff attacked the credibility of
certain witnesses, (5) Plaintiff advising the jury that Title VII and Title IX liability were the
same, (6) the Court’s admission of evidence that related only to the previously dismissed
retaliation claim, (7) the Court not admitting evidence of Rick Fox’s statement that the lawsuit
was his “pay day,” (8) the Court’s admission of testimony relating to Giles rubbing against
Plaintiff in a bathroom, and (9) the Court’s admission of evidence relating to Plaintiff’s
prescriptions. Some of these so-called errors were not properly preserved for review, as
Defendant failed to cite to the record supporting its statements and argument about them. But,
for those alleged errors that are properly preserved for review, neither individually nor
cumulatively did the alleged errors prejudice Defendant’s rights.213
First, Defendant alleges that Plaintiff improperly vilified Defendant by referring to it as
“the State” in Plaintiff’s opening statement214 and closing argument.215 Defendant argues that
these references were meant to invoke prejudice of jurors who have a bias against the State.
Defendant merely speculates that any juror had a bias against the State, and the Court is
unwilling to engage in such speculation.216 Defendant ignores the fact that the Court instructed
the jury to not be influenced by bias, sympathy or prejudice.217 Defendant is undeniably an
entity of the State. Indeed, Defendant Pittsburgh State University stipulated in the Pretrial Order

213

See Henning v. Union Pac. R.R., 530 F.3d 1206, 1216–17 (10th Cir. 2008) (citing Fed. R. Civ. P. 61).

214

Doc. 200 at 10:23–11:1, 12:2–9.

215

Doc. 202 at 14:22–15:2; 17:23–18:1.

216

Defendant also speculates that this jury was biased by news of a video that surfaced during this trial of
then-presidential candidate Donald J. Trump making lewd sexual comments about women.
217

Jury Instruction No. 13.

55

that it is “a state educational institution under Kansas law.”218 Defendant was represented by the
Attorney General’s office for the State of Kansas. The verdict will be paid from the State of
Kansas’s Kansas Tort Claims Fund. Moreover, Defendant relied on its status as a state entity in
asserting sovereign immunity in its motion for judgment, and in arguing that it should not have
to post supersedeas bond.219
Second, Defendant alleges that Plaintiff improperly attempted to garner sympathy with
references to the Constitution and the Bible as well as references to her being a custodian.
Defendant fails to explain how any such references would garner sympathy, and the Court finds
that such references were proper in the context of this case. While the Court ruled in its limine
order that Plaintiff’s Exhibit 22, 220 a passage from the Bible, was inadmissible, it was proper for
Plaintiff to explain a statement she made during her September 2013 meeting with Johnson. In
that meeting, Plaintiff told Johnson that Giles was lusting after her and that was wrong. Johnson
testified that she considered Plaintiff’s statement homophobic; Plaintiff testified that it was a
statement of her biblically-based belief that lusting after another person was wrong. To the
extent that was a reference to the Bible, it was proper, and was not offered to garner sympathy,
but was offered to rebut Johnson’s testimony about Plaintiff’s state of mind. Further, although
Plaintiff referenced the Constitution in opening and closing, these were general references to the
Fourteenth Amendment and to rights and protections granted by the Constitution, not appeals to
award high damages, as Defendant claims.221 Nor was it improper for Plaintiff to be referred to
as a custodian. This is an employment case in which Plaintiff’s job duties, and the terms and

218

Doc. 81 at 2.

219

See Doc. 249.

220

Doc. 215 at 15.

221

See, e.g., Doc. 200 at 3:3:13–15 (quoting verbatim the Fourteenth Amendment).

56

conditions of her employment were germane. In short, none of these complained-of comments,
singularly or cumulatively amounted to error affecting Defendant’s rights.
Third, Defendant alleges that in her closing argument, Plaintiff improperly suggested to
the jury that it should compensate her based on replacing wages, or based on other cases. On the
contrary, Plaintiff argued that the jury should not base compensation on her wages. In fact,
Plaintiff argued that basing an award for sexual harassment on the plaintiff’s wages “creates sort
of a two-tiered system of justice, for people, high wage earners and low wage earners.”222
Plaintiff’s counsel suggested that the emotional well-being of an executive who is harassed is no
more valuable than the emotional well-being of a custodian. The Court does not find that
Plaintiff’s counsel suggested that she should be compensated based on lost compensation.223
Plaintiff’s counsel further suggested, “based it on cases we’ve had, similar ones,”224 a range of
damages, “from about 230,000 to $350,000,”225 while acknowledging that the jury may think
that range too high or too low. This was not “extraneous matter” that warrants reversible
error.226 The jury was instructed extensively to compensate based on the competent evidence of
“the nature, extent, and duration of the harm.”227
Further, as itemized above, Defendant raised six other challenges to evidence or
comments of Plaintiff’s counsel pertaining to: impeachment of certain witnesses,228 admission of

222

Doc. 202 at 16: 3–14, 20–25; 17: 1–10.

223

The Court finds Defendant’s citation to McInnis v. Town of Weston 458 F. Supp. 2d 7, 19 (D. Conn.
2006) unpersuasive. There the court held a jury award of $860,000 excessive given the plaintiff’s counsel
suggestion of a retirement income projection of $960,000 for only emotional distress evidence. But here, Plaintiff’s
counsel suggested a range that was not based on salary, wage, or retirement losses.
224

Doc. 202 at 16: 3–14, 20–25; 17: 1–10.

225

Id.

226

Lambert v. Midwest City Memorial Hosp. Auth., 671 F.2d 372, 375–76 (10th Cir. 1982).

227

See Jury Instruction No. 13.

228

Defendant fails to cite to the record and fails to demonstrate how the complained-of impeachment was
improper. It was proper to question whether PSU attempted to influence Sherry Vineyard’s testimony by granting

57

events that Defendant claims related only to the previously dismissed retaliation claim,229
excluding admission of Rick Fox’s statement that the lawsuit was his “pay day,”230 admission of
testimony about Giles rubbing against Plaintiff in a bathroom stall,231 and admission of evidence
relating to Plaintiff’s prescription medication. Defendant fails to cite to the transcript or record
with respect to these six alleged errors.
When a party makes “mere conclusory allegations with no citations to the record or any
legal authority for support’ [this is] . . . inadequate to preserve an issue for review.”232 It is also
inadequate to preserve an issue for purposes of a motion for judgment or new trial filed with a
trial court. This court’s local rules require that all briefs and memoranda filed with the court
contain “a concise statements of the facts, with each statement of fact supported by reference to
the record;” and “the argument, which must refer to all statutes, rules, and authorities relied

her a shift change. It was proper to examine Giles and McGowan about an allegation that they gave a “penis cup” to
their own employee (of a cleaning business they owned), to impeach their testimony that they had no knowledge or
awareness of sexual harassment. It was proper to impeach Giles testimony that minimized her role in engaging in
threatening or hostile behavior towards Plaintiff and Rick Fox, with an allegation that she angrily kicked a trashcan
in a courtroom.
229

As the Court explained at length in an earlier section of this order, see supra Part II.B.2.a, given the
significant evidentiary overlap of the Title VII retaliation claim and the Title VII hostile work environment claim,
the evidence Defendant complains about was relevant to both the dismissed Title VII retaliation claim and the
surviving Title VII claim.
230

In its limine order, the Court reserved ruling on this admission of this evidence, advising the parties to
take up the issue with the Court during trial, when the Court would have context in which to weigh the probative
value of the evidence with its prejudicial effect, as Rule 403(b) requires. At trial, the Court conducted the Rule
403(b) balancing and found the evidence more prejudicial than probative. Because Defendant failed to cite to the
transcript on this point, it is unclear whether Defendant raised a contemporaneous objection to preserve this
evidentiary ruling for appeal.
231

Defendant complains that Plaintiff never mentioned this incident to Johnson, nor in her EEOC
complaint, nor in her Complaint in this case, but raised it for the first time in her deposition. Needless to say, it
would have been proper for Defendant to impeach Plaintiff with the lateness of this revelation, so the jury could
determine Plaintiff’s credibility. Because Defendant failed to cite to the record, the Court does not know whether
Defendant impeached Plaintiff, but nothing precluded Defendant from impeaching Plaintiff with this. In any event,
this is not a ground for new trial.
232

Krumm v. Holder, 594 F. App’x 497, 501 (10th Cir. 2014) (quoting Garrett v. Selby Connor Maddux &
Janer, 425 F.3d 836, 841 (10th Cir. 2005)).

58

upon.”233 The trial court is no more equipped to comb through a voluminous trial record than the
appellate court is equipped to comb through that same voluminous trial record to find testimony
or evidentiary rulings the movant or appellant challenges. As the Tenth Circuit put it, “the
district courts [ ] have a limited and neutral role in the adversarial process, and are wary of
becoming advocates who comb the record of previously available evidence and make a party's
case for it.” 234 Thus, where a party does not cite to the record, the Court is under no obligation
to do so.235
This Court declines to comb through the record to find the testimony and/or evidentiary
rulings that Defendant challenges. Nonetheless, the Court cannot ignore that some of
Defendant’s challenges mischaracterize the Court’s limine and/or evidentiary rulings, and
misstate what the Court ruled upon at trial. For example, Defendant claims that while examining
Kristi McGowan about her yelling at Rick Fox, “I’m going to fucking kill you,” Plaintiff’s
counsel himself yelled these words to McGowan. Of course, had Defendant cited to the
transcript of that testimony, this challenge would be preserved for review. But a transcript
cannot capture inflection, tone or volume. And the Court clearly recalls that while Plaintiff’s
counsel raised his voice with emphasis, he did not yell at McGowan.
Another example of Defendant misstating the record is in its argument that the Court
erred in excluding evidence relating to Plaintiff’s prescription medication. The Court did not
exclude all evidence concerning the prescription medication. Both Plaintiff and Defendant were
allowed to inquire into Plaintiff’s testimony that she had taken Xanax for anxiety before but
233

D.Kan.Local Rule 7.6(a)(2).

234

Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 672 (10th Cir. 1998).

235

See RMD, LLC v. Nitto Americas, Inc., No. 09-2056-JAR, 2012 WL 1033542, at *8 (D. Kan. Mar. 27,
2012) ("The court will not sift through the record in an attempt to locate or articulate arguments for [the party's]
counsel.").

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began taking a higher dosage for worsening anxiety after the harassment began. The only
evidence the Court excluded was the prescription medication records and references to the
prescription medication records. The Court excluded this evidence upon Defendant’s limine
motion to exclude the prescription records.236 Despite obtaining this favorable ruling pre-trial,
Defendant attempted to question Plaintiff about the very prescription records that the Court had
excluded. This was in effect, Defendant’s attempt to use a favorable limine ruling as a sword
against Plaintiff. It was prejudicial to obtain a ruling that prevented Plaintiff from offering or
testifying about her prescription records, and then cross examine Plaintiff about those records.
This tactic suggested that Plaintiff was hiding her prescription records, when in fact it was
Defendant that had gained their exclusion from the trial evidence. For that reason, the Court
sustained Plaintiff’s objection to Defendant’s line of questioning about the prescription records.
And still another example of Defendant misstating the record is in its argument that
Plaintiff misled the jury in closing arguments in stating “Title IX is a little different than Title
VII.”237 But Defendant cites this statement out of context, for Plaintiff actually differentiated
Title VII and Title IX claims, explaining at length the distinction between deliberate indifference
and actual knowledge for purposes of Title IX.238 Plaintiff also explained the different purposes
underlying Title VII and Title IX. This was neither improper, nor prejudicial.
In short, to the extent Defendant cited to the record and preserved an objection, its points
of error are without merit. And, with respect to those points that Defendant failed to preserve by
citing to the record, to the extent the Court could reference the record without an arduous search,
those alleged points of error are also without merit.

236

Doc. 150.

237

Doc. 202 at 5:7 (emphasis added).

238

Doc. 202 at 5:18–21.

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4.

Admission of Audio Recording

Defendant argues that this Court improperly allowed Plaintiff, during the direct
examination of Plaintiff, to play an audio recording of a meeting between Johnson and Plaintiff.
This, Defendant argues was beyond the scope of the Court’s limine ruling, which allowed the
recording to be admitted only for impeachment purposes. Defendant further argues that the
Court did not allow Defendant to play the recording during Defendant’s cross-examination of
Plaintiff. Like many of the alleged points of error addressed above, Defendant misstates the
record.
During Plaintiff’s case-in-chief, the Court admitted a portion of the audio recording of
the March 7 meeting between Plaintiff and Johnson. This portion of the audio recording was
played during the direct examination of Johnson, to impeach her testimony denying that she had
admitted that Plaintiff had been subjected to sexual harassment.239 This portion of the audio
recording was also played during the direct examination of Plaintiff.240 Defendant’s argument
that playing the recording during Plaintiff’s testimony constituted improper bolstering is without
merit. The tape recording was properly admitted as a party admission by Johnson, who during
the meeting admitted that Plaintiff had been subjected to conduct so pervasive that it changed the
nature of her work environment and made Plaintiff uncomfortable to come to work.241 These
were statements by Johnson, not by Plaintiff. A party admission is itself impeachment evidence,

239

Doc. 201 at 47:14–19.

240

Defendant did not attempt to cross-examine Plaintiff with such recording, and the Court did not forbid
Defendant from doing so. Defendant’s counsel did question Plaintiff about whether she told Johnson she was being
recorded during the meeting, and Plaintiff alleged she had an “under surveillance” sticker on her shirt. However,
Defendant’s counsel did not seek to admit other parts of the audio recording nor place in context, any statements
recorded in the audio clip played by Plaintiff.
241

Doc. 200 at 90:1–21 (referring to Pl’s Ex. 57bb).

61

and thus was properly admitted, and was properly published to the jury during the testimony of
Johnson and during the testimony of Plaintiff.
Moreover, Defendant misstates the record when it argues that the Court precluded it from
playing the audio recording during cross examination. Defendant cagily fails to explain that
during Johnson’s testimony in Plaintiff’s case-in-chief, Defendant sought to play the entire
recording, not the portion that Plaintiff had already played. And Defendant fails to explain that
while Plaintiff had designated that portion of the recording as evidence, Defendant had failed to
counter-designate the entire recording as evidence. Because Defendant had failed to follow the
Court’s order to designate what portion(s) it would seek to admit at trial,242 the Court fashioned a
remedy, in the midst of trial, to address Defendant’s failure. Because Defendant intended to call
Johnson in its own case-in-chief, the Court directed Defendant to wait and play the entire
recording during Johnson’s testimony in its case. This would allow Plaintiff time to review the
entire recording, something that would have been accomplished pretrial, had Defendant followed
the rules on designating exhibits.243 The Court combed through a rough transcript of Johnson’s
testimony in Defendant’s case in chief,244 and the Court could not find where Defendant sought
to admit the audio clip and was not allowed to do so. There was no error and Defendant suffered
no prejudice.

242

Doc. 201 at 65–70.

243

There is a dispute whether Plaintiff’s counsel received the designations the night before Johnson’s
testimony or during Johnson’s testimony. Regardless, this was inadequate time to review the designation, so it was
proper for the Court to give Plaintiff additional time for review. This is especially so in light of Johnson testifying
in Defendant’s case-in-chief, so it was not prejudicial.
244

Defendant did not order trial transcript for its own witnesses. The Court was forced to rely on a rough
transcript of Johnson’s direct examination in Defendant’s case in chief.

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5.

Jury Instructions

Defendant’s final argument relates to Jury Instruction No. 14, Jury Instruction No. 9, and
the Title IX Jury Instructions. This Court has already ruled above that Title IX was properly
applied in this case, so it overrules Defendant’s objections to the Title IX instructions. However,
the Court will address Jury Instruction No. 14 and Jury Instruction No. 9 in turn.
Jury instruction No. 14 (the “Eggshell Skull Instruction”) read:
If you find in favor of Plaintiff on either one of her claims of sexual harassment,
Defendant is responsible for any and all damages resulting from that sexual harassment.
This is regardless of whether Plaintiff suffered from a preexisting psychological
condition that made the consequences of the sexual harassment more severe for Plaintiff
than they would have been for a person without the same condition.
In determining whether Defendant caused Plaintiff’s claimed distress, you are allowed to
consider evidence of other probable causes of such distress.

Defendant argues that the Eggshell Skull Instruction is only properly applied to tort cases
alleging physical injury, not mental distress. Defendant further argues that this instruction is
properly given only in tort cases and by giving it in this case, the Court created an “implied” tort
remedy outside of any waiver of sovereign immunity.
The parties do not cite, nor has the Court found, Tenth Circuit case law considering an
“eggshell skull” jury instruction in a Title VII or Title IX case. In Wren v. Spurlock, the Tenth
Circuit considered a similar jury instruction on the effect of pre-existing conditions in a § 1983
case claiming plaintiff’s employer retaliated against her for the exercise of her First Amendment
rights.245 That instruction read:
A person who has a condition or disability at the time of an injury is not entitled to
recover damages therefor. However, she is entitled to recover damages for any
aggravation of such preexisting condition or disability proximately resulting from the
injury.

245

798 F.2d 1313, 1321 (10th Cir. 1986).

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This is true even if the person's condition or disability made her more susceptible to the
possibility of ill effects than a normally healthy person would have been, and even if a
normally healthy person probably would not have suffered any substantial injury.
When preexisting condition or disability is so aggravated, the damages as to such
condition or disability are limited to the additional injury caused by the aggravation.246

The Tenth Circuit found the district court did not err in giving such an instruction because “[i]t
ensured that the jury would award only that sum arising from [the defendant’s] aggravation of
whatever preexisting condition or disability may have plagued [the plaintiff], not the sum that
would compensate her for her total disability.247
The Court finds Wren instructive. Wren instructs that the consideration of pre-existing
conditions in awarding damages is applicable beyond tort and personal injury; and pre-existing
conditions may also be mental, not just physical. Moreover, consideration of pre-existing
conditions does not create an “implied” tort remedy or cause of action. Rather, it is a limitation
on damages.248 For that reason, sovereign immunity is not implicated. The Court concludes,
based on Wren, that the Eggshell Skull Instruction was properly given in this case.
Further, at least one circuit has considered the propriety of an “eggshell skull” instruction
in a Title VII employment case. In Jenson v. Eveleth Taconite Co., a Title VII sexual
harassment and a Minnesota Human Rights Act case,249 the Eighth Circuit explained that the
“eggshell skull” principle was properly applied because “foreseeability does not limit an award
of money damages,” including “damages assessed against a tortfeasor for harm caused to a
plaintiff who happens to have a fragile psyche.”250

246

Id.

247

Id. at 1322

248

Id. (considering the pre-existing conditions instruction as “tend[ing] to limit the amount of recoverable

damages.”).
249

130 F.3d 1287, 1295 (8th Cir. 1997).

250

Id.

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Defendant cites a number of cases for the proposition that a reasonable person standard is
applied to ensure that employers are not liable for overly sensitive employees. But, Defendant
conflates the substantive elements of a sexual harassment claim arising under Title IX and Title
VII with the “eggshell skull” concept for determining compensatory damages. While there is
both an objective and subjective element for considering whether a work environment was
hostile under Title VII,251 that concerns the determination of liability, not the determination of
whether compensatory damages that should be awarded.
Defendant also argues that the Eggshell Skull Instruction is confusing and misleading in
that it contradicts Jury Instruction No. 13 and No. 11. Defendant argues that the Eggshell Skull
Instruction conflicts with the language in Jury Instruction No. 13, that “[y]ou may award
compensatory damages only for injuries that Fox proves were caused by Defendant’s allegedly
wrongful conduct.” Defendant also argues that the Eggshell Skull Instruction conflicts with the
language in Jury Instruction No. 11, that “[y]ou must look at the evidence from the perspective
of a reasonable person’s reaction to a similar environment under similar circumstances. You
cannot view the evidence from the perspective of an overly sensitive person . . . the alleged
harassing behavior must be such that a reasonable person in the same or similar circumstances as
Fox would find the conduct offensive.”
But Defendant’s arguments are without merit. As to Jury Instruction No. 11, Defendant
conflates the substantive elements of Title VII and Title IX liability and the assessment of the
proper amount of damages as explained above. And, as to Jury Instruction No. 13, the statement
that compensatory damages may only be awarded for damages Defendant caused is not in
conflict with the “eggshell skull” concept. In fact, the Eggshell Skull Instruction requires that
251

See, e.g., Hernandez v. Valley View Hosp. Ass’n, 684 F.3d 950, 957 (10th Cir. 2012) (“A dual standard
asks both whether the plaintiff was offended by the work environment and whether a reasonable person would
likewise be offended.”).

65

the jury account for Plaintiff’s pre-existing condition, which may have made her more
susceptible to damages, when determining the proper amount of compensatory damages.
Further, as Jury Instruction No. 13 properly explains, the proper amount is not the total disability
suffered, but only those Defendant caused.
Defendant next argues that even if the Eggshell Skull Instruction is properly given for
these types of claims, the evidence in this trial did not support the giving of this instruction. The
Court disagrees. Plaintiff testified that she had pre-existing anxiety following the death of her
mother. She testified at length about her anxiety prior to the harassment. She also testified that
she was taking Xanax for anxiety and that she increased her dosage when her anxiety worsened
during the period of harassment. There was no medical testimony to confirm her diagnosis, nor
prescription records, which were excluded on Defendant’s limine motion. But, Plaintiff provided
competent and credible evidence of her condition. The evidence at trial warranted an instruction
on her pre-existing condition.
Defendant also claims error in Jury Instruction No. 9, which defined “harassment.”
Defendant argues it improperly instructed on overtly gender related conduct.252 The instruction
states in relevant part: “But discriminatory intimidation, ridicule, unwelcome sexual advances,
requests for sexual favors, or other verbal or physical conduct that is overtly or not overtly based
on Plaintiff’s sex, may be sufficiently extreme to alter the terms and conditions of
employment.”253 As the Court explained at length above, 254 facially gender-neutral abusive
conduct can support a gender-based hostile work environment claim when “viewed in the
252

The Court rejects Defendant’s argument that this additional language was added after the deadline for
submission of jury instructions. The Court in the Pretrial Order merely requested “proposed” instructions, and these
were subject to change during both the informal and formal jury instruction conferences. Doc. 132 at 5.
253

Jury Instruction No. 9 (emphasis added).

254

See supra Part II.B.2.b. (explaining that the jury may properly consider both overtly and not overtly
gender related conduct).

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context of other, overtly gender-discriminatory conduct.” 255 There was evidence presented of
both overtly and not overtly gender-related conduct. Thus, the jury was properly instructed it
could consider both.
IT IS THEREFORE ORDERED BY THE COURT that Defendant’s Motion for
Renewed Judgment as a Matter of Law as to the Title IX Claim (Doc. 207) is denied.
IT IS THEREFORE FURTHER ORDERED BY THE COURT that Defendant’s
Motion for Renewed Judgment as a Matter of Law as to the Title VII Claim (Doc. 209) is
denied.
IT IS THEREFORE FURTHER ORDERED BY THE COURT that Defendant’s
Motion for New Trial or in the Alternative For Remittitur (Doc. 214) is denied.
IT IS SO ORDERED.
Dated: June 26, 2017
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE

255

O’Shea v. Yellow Tech. Servs., Inc., 185 F.3d 1093, 1097 (10th Cir.1999); see also Chavez v. New
Mexico, 397 F.3d 826, 833 (10th Cir. 2005) (“The question then becomes whether Plaintiffs can use a substantial
amount of arguably gender-neutral harassment to bolster a smaller amount of gender-based conduct on summary
judgment. Our precedents say that they can.”).

67