Doe v. University of North Texas System

Filing 41

MEMORANDUM OPINION AND ORDER re 32 MOTION for Summary Judgment filed by Neil J Smatresk, The University of North Texas Board of Regents. Defendants Motion for Summary Judgment (Dkt. #32) ishereby DENIED. Signed by Judge Amos L. Mazzant, III on 6/2/17. (cm, )

United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

JANE DOE
v.
THE UNIVERSITY OF NORTH TEXAS
BOARD OF REGENTS, PRESIDENT NEIL
J SMATRESK, IN HIS OFFICIAL
CAPACITY

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Civil Action No. 4:16-CV-00138
Judge Mazzant

MEMORANDUM OPINION AND ORDER
Pending before the Court is Defendant’s Motion for Summary Judgment (Dkt. #32).
After reviewing the relevant pleadings and motion, the Court finds the motion should be denied.
BACKGROUND
This case arises from an alleged sexual assault on Jane Doe (“Doe”) by Derek Rankins
(“Rankins”) a former adjunct-professor of the University of North Texas (“UNT”) and full-time
employee at UNT’s library. Plaintiff reported the assault to Denton police who conducted a
Sexual Assault Nurse Examination (“SANE”) exam and took samples to conduct a toxicology
test. Throughout Plaintiff’s investigation, Denton police retained custody of the SANE exam and
of Plaintiff’s toxicology results.
That same day, Plaintiff reported the assault to Rodney Mitchell (“Mitchell”), Junior
Dean of UNT. Mitchell directed Plaintiff to file a report with the Office of Equal Opportunity
(“OEO”), gave her his cell number, set up a safe room in the Santa Fe Dorm, and arranged a
police escort for Plaintiff to and from her safe room. Mitchell told Plaintiff that the Santa Fe
Dorm was temporary and that she would have to either move back to her apartment or begin to
pay on February 2, 2015.

On January 13, 2015, Mitchell took Plaintiff to the OEO to meet Senior Investigator
Kelly Gould (“Gould”). Plaintiff informed Gould of what happened and formally filed her
complaint. Gould told Plaintiff that the investigation would be completed in forty-five to sixty
days. According to the current Vice President of the OEO, there must be a compelling reason to
keep an investigation open longer than forty-five days and the parties must be notified of that
reason.
During Plaintiff’s investigation, Gould was the OEO’s only investigator. Gould had about
ten investigations open at the time of Plaintiff’s complaint. This was her first sexual assault.
Gould officially began FMLA leave in late April 2015, but missed several days beginning in
early March. Gould was on FMLA leave for about four weeks.
On January 16, 2015, Gould contacted Interim Vice President for Community
Engagement, Dr. Jean Keller (“Keller”), regarding Rankins. Gould and Keller then contacted the
library and decided to reassign Rankins’s adjunct duties that were set to begin on January 20,
2015. The same day, Gould interviewed Rankins and informed him of the complaint. Rankins
claimed that he had consensual sex with Plaintiff. Later that day, UNT sent a written notification
of the complaint to Rankins memorializing the meeting and allegations against him. Meanwhile,
Plaintiff met with Mitchell and told him that she saw Rankins on a sidewalk on or near campus
while she was on the bus.
On January 17, 2015, the Interim Dean for the College of Visual Arts and Design sent
Rankins a letter informing him that his adjunct position had been reassigned and ordering him
not to enter the art building or Oak Street Hall. Gould claims that she immediately informed
Plaintiff of this decision. However, Plaintiff claims that she was not told until mid-February.

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Although UNT reassigned Rankins’s adjunct position, he remained a full-time employee
in the library. Rankins was assigned to the scanning lab in the back of the library’s third floor.
Restrooms are not located in the scanning lab. The only restrooms are located in the stairwells in
the corners of the building. Rankins did not have to clock in and his hours were flexible, as long
as he did forty per week.
Classes began on January 20, 2015. That same day, the Dean of Libraries Martin Halbert
informed Rankins, once again, that he was not to enter the College of Visual Arts and Design
building unless authorized to do so by the college. Throughout the semester, Plaintiff was
depressed and fearful of running into Rankins. She stopped attending classes regularly and
avoided the library where she knew Rankins worked. The first week of school, Plaintiff needed
to go to the library to complete an assignment because her books were not in, but she did not go
because she feared an encounter with Rankins. Plaintiff informed Gould of this. Rankins also had
friends who attended classes in the art building with Plaintiff. One friend in particular, Jeremy
Chavez (“Chavez”), would stare at Plaintiff in a way that made her feel uncomfortable and
threatened.
Plaintiff also began withdrawing from social activities because she feared running into
Rankins. Plaintiff confined herself to her apartment, not leaving for several weeks at a time. One
night when Plaintiff did go to a local bar, a stranger approached her and asked probing questions
about her assault and investigation until she began to cry. Plaintiff reported this incident to
Gould, but did not hear anything further.
At the end of the semester, Plaintiff sought Mitchell’s help in obtaining “incompletes” in
her classes. Mitchell was not available for two weeks in late April and early May. UNT did not

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assign a new advocate for Mitchell’s absence. Ultimately, Plaintiff was unable to obtain
“incompletes” because of her many absences. As a result, Plaintiff’s grades declined.
During Gould’s leave in late April and May, UNT hired two people to finish Plaintiff’s
investigation. First, UNT hired Jared Davis (“Davis”) in May 2015. Davis reviewed Gould’s
work, but did not interview any witnesses or Gould about the investigation. Davis finished his
investigation on May 29, 2015. That day, Davis met with Plaintiff and her attorney. Plaintiff’s
May 29 meeting was the first time that UNT informed her as to why the investigation took
longer than 45 days. On June 1, 2015, UNT hired Joann Woodard (“Woodard”) as Vice
President of OEO. Woodard took over the investigation from Davis by reviewing the previous
work, but did not interview any person. Woodard sent Plaintiff an outcome letter on July 29,
2015.
On May 5, 2015, Rankins resigned from his position in the library. Plaintiff was not
notified of his resignation.
LEGAL STANDARD
The purpose of summary judgment is to isolate and dispose of factually unsupported
claims or defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). Summary judgment
is proper under Rule 56(a) of the Federal Rules of Civil Procedure “if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). A dispute about a material fact is genuine when “the
evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson
v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986). Substantive law identifies which facts are
material. Id. The trial court “must resolve all reasonable doubts in favor of the party opposing the

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motion for summary judgment.” Casey Enters., Inc. v. Am. Hardware Mut. Ins. Co., 655 F.2d
598, 602 (5th Cir. 1981).
The party seeking summary judgment bears the initial burden of informing the court of its
motion and identifying “depositions, documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes of the motion only), admissions,
interrogatory answers, or other materials” that demonstrate the absence of a genuine issue of
material fact. Fed. R. Civ. P. 56(c)(1)(A); Celotex, 477 U.S. at 323. If the movant bears the
burden of proof on a claim or defense for which it is moving for summary judgment, it must
come forward with evidence that establishes “beyond peradventure all of the essential elements
of the claim or defense.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986). Where
the nonmovant bears the burden of proof, the movant may discharge the burden by showing that
there is an absence of evidence to support the nonmovant’s case. Celotex, 477 U.S. at 325; Byers
v. Dall. Morning News, Inc., 209 F.3d 419, 424 (5th Cir. 2000). Once the movant has carried its
burden, the nonmovant must “respond to the motion for summary judgment by setting forth
particular facts indicating there is a genuine issue for trial.” Byers, 209 F.3d at 424 (citing
Anderson, 477 U.S. at 248–49). A nonmovant must present affirmative evidence to defeat a
properly supported motion for summary judgment. Anderson, 477 U.S. at 257. Mere denials of
material facts, unsworn allegations, or arguments and assertions in briefs or legal memoranda
will not suffice to carry this burden. Rather, the Court requires “significant probative evidence”
from the nonmovant to dismiss a request for summary judgment. In re Mun. Bond Reporting
Antitrust Litig., 672 F.2d 436, 440 (5th Cir. 1982) (quoting Ferguson v. Nat’l Broad. Co.,
584 F.2d 111, 114 (5th Cir. 1978)). The Court must consider all of the evidence but must “refrain

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from making any credibility determinations or weighing the evidence.” Turner v. Baylor
Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007).
ANALYSIS
Plaintiff purports to allege two causes of action under Title IX. Plaintiff first alleges a
clearly unreasonable response to her complaint. Second, Plaintiff alleges a hostile education
environment. After a careful review of the pleadings and applicable law, the Court reads
Plaintiff’s complaint to make only one claim: a hostile education environment under Title IX.
To state a claim that a district was deliberately indifferent to sexual harassment in
violation of Title IX, a plaintiff must show the school (1) had actual knowledge of the
harassment; (2) the harasser was under the school’s control; (3) the harassment was based on the
victim’s sex, (4) the harassment was “so severe, pervasive, and objectively offensive that it
effectively bar[red] the victim’s access to an educational opportunity or benefit,” and (5) the
district was deliberately indifferent to the harassment. Sanches v. Carrollton-Farmers Branch
Indep. Sch. Dist., 647 F.3d 156, 165 (5th Cir. 2011) (quoting Davis ex rel. LaShonda D. v.
Monroe Cty. Bd. of Educ., 526 U.S. 629, 650 (1999)). UNT only argues the final two elements in
its motion for summary judgment.
A hostile education environment is another way of proving that the harassment was
severe, pervasive, and objectively offensive. A Title IX hostile education environment claim is
“governed by traditional Title VII ‘hostile environment’ jurisprudence.” Hayut v. State Univ. of
N.Y., 352 F.3d 733, 744 (2d Cir. 2003). A plaintiff may assert the theory of “hostile
environment” where the acts of sexual harassment are sufficiently severe to interfere with the
workplace or school opportunities normally available to the worker or student. Meritor Sav.
Bank FSB v. Vinson, 477 U.S. 57, 66 (1986). The Court must look at all the circumstances with

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an appropriate sensitivity to the social context. Harris v. Forklift Sys., Inc., 510 U.S. 17, 23
(1993); Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998). These circumstances
may include the frequency of discriminatory conduct, its severity, whether it is physically
threatening or humiliating or a mere offensive utterance, and whether it unreasonably interferes
with the student’s educational environment. Harris, 510 U.S. at 23. The environment must be
“both objectively and subjectively offensive.” Faragher v. City of Boca Raton, 524 U.S. 775,
787 (1998).
“Deliberate indifference is an extremely high standard to meet.” Domino v. Tex. Dep’t of
Crim. Justice, 239 F.3d 752, 756 (5th Cir. 2001). To be deliberately indifferent, a school’s
“response to the harassment or lack thereof [must be] clearly unreasonable in light of known
circumstances.” Davis, 526 U.S. at 648. “Actions and decisions by officials that are merely inept,
erroneous, ineffective, or negligent do not amount to deliberate indifference.” Doe ex rel. Doe v.
Dall. Indep. Sch. Dist., 153 F.3d 211, 219 (5th Cir. 1998). “[D]etermining what constitutes
appropriate remedial action . . . will necessarily depend on the particular facts of the case.” Doe
v. Dall. Indep. Sch. Dist., 220 F.3d 380, 384 (5th Cir. 2000) (quoting Rosa H. v. San Elizario
Indep. Sch. Dist., 106 F.3d 648, 660–61 (5th Cir. 1997) (internal quotations omitted)).
UNT argues that the harassment was not severe or pervasive because the mere possibility
of encountering Rankins was not severe and pervasive and because Plaintiff did not suffer
additional discrimination due to deliberate indifference of UNT. UNT also argues that it did not
act with deliberate indifference with regard to the harassment because it acted swiftly to provide
safe housing, took away Rankins’s faculty appointment, prohibited Rankins from the art
buildings, and gave Plaintiff an advocate, which she used many times.

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Plaintiff argues that the harassment was severe and pervasive because it interfered with
educational opportunities such as going to school, the gym, the library, and social interactions.
Plaintiff argues that UNT was deliberately indifferent because (1) it failed to conclude its
investigation until after a “lengthy and unjustified delay;” (2) UNT failed to prevent further
encounters between Plaintiff and Rankins; (3) UNT did not keep Plaintiff informed of remedial
actions that were taken; and (4) UNT’s remedial actions were inadequate. The Court finds that a
genuine issue of material fact exists as to both elements.
The facts taken in the light most favorable to Plaintiff show that she was subjectively and
objectively denied educational opportunities. Plaintiff was unaware of the remedial actions taken
against Rankins for at least one month after the alleged assault. During that time, Plaintiff did not
enter the library as was required to complete her assignments; she did not attend classes
regularly; and stayed in her apartment for weeks at a time out of fear of running into Rankins.
Throughout the entire investigation, Plaintiff had a likelihood of encountering Rankins on the
third floor of the library due to its layout and Rankins’s unpredictable schedule. Chavez gave
Plaintiff harassing glares while she was in the art building. Finally, Plaintiff’s grades dropped
and she was unable to obtain incompletes because of her many absences.
Fact issues also remain as to UNT’s response to the harassment. After Plaintiff’s initial
complaint, she returned to Mitchell or Gould more than eleven times. As early as January 13,
2015, Plaintiff told Gould that she could not enter the library. Despite knowing this, Gould did
not inform Plaintiff of Rankins’ restrictions. On January 16, Plaintiff told Mitchell that she saw
Rankins on the sidewalk near campus while she was on the bus. In late February, Plaintiff
informed UNT about an odd encounter with a stranger at a bar who asked probing questions into
her assault and investigation. Sometime in February or March, Plaintiff reported that her friends

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saw Rankins outside of the art building and Plaintiff had to hide to avoid him. Plaintiff also
informed UNT that she saw Chavez outside of her classroom in the arts building once or twice.
Chavez did not have any classes in that building, and was good friends with Rankins. Plaintiff
felt threatened and harassed from the looks that Chavez gave her. Plaintiff claims that she saw
Chavez at other times when she was eating or walking around campus, but she did not say
whether she reported these instances. For several weeks in late April and early May, both
Mitchell and Gould were out of the office and Plaintiff was unable to obtain counseling. Finally,
when Mitchell returned from his illness in May, Plaintiff informed him that she was having
difficulty focusing and was looking for assistance in obtaining “incomplete” grades in classes so
that she could finish her work after the semester ended. Taking these facts in their social context
and the light most favorable to Plaintiff, the Court finds that genuine issues remain as to UNT’s
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response.
CONCLUSION
It is therefore ORDERED that Defendant’s Motion for Summary Judgment (Dkt. #32) is
hereby DENIED.
SIGNED this 2nd day of June, 2017.

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AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE

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