Jane Doe v. Mercy Catholic Medical Center

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______

No. 16-1247
______

JANE DOE,
Appellant

v.

MERCY CATHOLIC MEDICAL CENTER
______

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(E.D. Pa. No. 2-15-cv-02085)
District Judge: Honorable Michael M. Baylson
______

Argued December 6, 2016
Before: FISHER, KRAUSE and MELLOY,** Circuit
Judges.


Honorable D. Michael Fisher, United States Circuit Judge
for the Third Circuit, assumed senior status on February 1,
2017.
**
Honorable Michael J. Melloy, Senior Circuit Judge,
United States Court of Appeals for the Eighth Circuit, sitting by
designation.
 (Filed: March 7, 2017)

Joshua S. Boyette [ARGUED]
Swartz Swidler
1101 Kings Highway North, Suite 402
Cherry Hill, NJ 08034
Counsel for Appellant

Vanita Gupta, Principal Deputy Assistant Attorney General
Sharon M. McGowan
Christine A. Monta [ARGUED]
United States Department of Justice
Civil Rights Division, Appellate Section
P.O. Box 14403
Ben Franklin Station
Washington, DC 20044
Counsel for Amicus Appellant,
United States of America

Darren M. Creasy
A. James Johnston
Andrea M. Kirshenbaum
Kate A. Kleba
Robin L. Nagele [ARGUED]
Post & Schell
1600 John F. Kennedy Boulevard
Four Penn Center, 13th Floor
Philadelphia, PA 19103
Counsel for Appellee

Philip H. Lebowitz
Duane Morris

2
30 South 17th Street, United Plaza
Philadelphia, PA 19103
Counsel for Amicus Appellee, Hospital &
Healthsystem Association of Pennsylvania

______

OPINION OF THE COURT
______

FISHER, Circuit Judge.

Medical residencies are a vital component of American
medical education. McKeesport Hosp. v. ACGME, 24 F.3d 519,
525 (3d Cir. 1994). They provide new doctors a supervised
transition between the pure academics of medical school and the
realities of practice. Generally they do so successfully: Our
nation’s residency programs reliably produce some of the
“finest physicians and medical researchers in the world.” 15
U.S.C. § 37b(a)(1)(A). But as this case shows, these programs
aren’t exempt from charges of sex discrimination. Here we must
decide whether an ex-resident, proceeding anonymously as Jane
Doe, can bring private causes of action for sex discrimination
under Title IX of the Education Amendments of 1972, 20
U.S.C. § 1681 et seq., against Mercy Catholic Medical Center, a
private teaching hospital operating a residency program. The
District Court held she cannot and dismissed her complaint in its
entirety. We will affirm in part and reverse in part that order.
Doe’s Title IX retaliation and quid pro quo claims endure. Her
Title IX hostile environment claim is, however, time-barred.

3
 I
We recount the facts as Doe alleged them, accepting
them as true. Davis v. Wells Fargo, 824 F.3d 333, 338 n.2 (3d
Cir. 2016); see App. 100–24.
Graduate medical education, or residency education, is a
period of didactic and clinical instruction in a medical specialty
during which physicians prepare for independent practice after
graduating from medical school. Residency programs are
typically accredited. Leading on that front is the Accreditation
Council for Graduate Medical Education, or ACGME, which
aims to improve healthcare by assessing and advancing the
quality of residents’ educations. Its reach is far and its influence
wide. During the 2013–14 academic year, around 9,600
ACGME-accredited programs operated in about 700
institutions, enrolling over 120,000 residents and fellows in 130
medical specialties. The ACGME calls these programs
structured educational experiences, and completing one
generally results in eligibility for board certification.
Predictably, residency programs are expensive to run.
The Association of American Medical Colleges says it costs a
hospital about $152,000 a year to train a single resident. But the
federal government helps with funding by way of direct and
indirect graduate medical education payments through
Medicare.
Our case is about a residency program at Mercy, a
private teaching hospital in Philadelphia that accepts Medicare
payments and is affiliated with Drexel University’s College of
Medicine. Owing to its commitment to medical education,
Mercy offers four ACGME-accredited residency programs in
internal medicine, diagnostic radiology, general surgery, and a
transitional year residency, in addition to providing the clinical
bases for Drexel Medicine’s emergency medicine residency.

4
 Under a residency agreement, Doe joined Mercy’s
diagnostic radiology residency program in 2011 as a second-
year, or R2. The program offered training in all radiology
subspecialties in a community-hospital setting combining
hands-on experience with didactic teaching. As required, Doe
attended daily morning lectures presented by faculty and
afternoon case presentations given by residents under faculty or
attending physicians’ supervision. She took a mandatory physics
class taught on Drexel’s campus, attended monthly radiology
lectures and society meetings, joined in interdepartmental
conferences, and sat for annual examinations to assess her
progress and competence.
Doe says the director of Mercy’s residency program,
whom she calls Dr. James Roe, sexually harassed her and
retaliated against her for complaining about his behavior,
resulting in her eventual dismissal. Early on, Dr. Roe inquired
about her personal life and learned she was living apart from her
husband. He found opportunities to see and speak with her more
than would otherwise be expected, often looking at her
suggestively. This made Doe uncomfortable, especially when
the two were alone. From these interactions she surmised Dr.
Roe was sexually attracted to her and wished to pursue a
relationship, though they both were married.
Three months into her residency Doe sent Dr. Roe an
email voicing concern that others knew about his interest in her.
She wanted their relationship to remain professional, she said,
but Dr. Roe persisted, stating he wanted to meet with her while
they attended a conference in Chicago. She replied with text
messages to clear the air that she didn’t want to pursue a
relationship with him. Apparently displeased, Dr. Roe reported
these messages to Mercy’s human resources department, or HR.
In response, HR called Doe to a meeting where she described

5
Dr. Roe’s conduct, like how he’d touched her hand at work, and
said his unwelcome sexual attention was negatively affecting
her training. The next day HR referred Doe to a psychiatrist,
noting that her attendance was optional. Doe, however, believed
Mercy would use it against her if she didn’t go, given her
complaints against Dr. Roe. She thus attended three sessions
and complained there about Dr. Roe’s conduct, but she heard
nothing more from HR. Later Dr. Roe apologized to Doe for
reporting her. He did it, he said, for fear he’d be reprimanded
for having an inappropriate relationship with her. Thereafter two
male faculty members, both close with Dr. Roe, trained her
significantly less than they had before.
In Fall 2012 Dr. Roe learned Doe was getting divorced.
His overtures intensified. He too was getting divorced, he told
her, and he wanted a relationship with her. He suggested they go
shooting and travel together. He said he was uncomfortable with
her going to dinner for fellowship interviews and unhappy about
her leaving Philadelphia post-residency. During this time Doe
asked Dr. Roe and another faculty member for fellowship
recommendation letters. They agreed but wrote short, cursory,
and perfunctory ones. Dr. Roe even told the fellowship’s
director that Doe was a poor candidate. When Doe called Dr.
Roe to ask why, he said it was to teach her a lesson before
hanging up on her.
In response to Doe’s complaints about Dr. Roe, Mercy’s
vice president, Dr. Arnold Eiser, called Doe to a meeting with
Dr. Roe and others. There Doe complained about Dr. Roe’s
conduct again but was told to wait outside. A short time later
Dr. Eiser escorted her to Mercy’s psychiatrist. As they walked
Dr. Eiser told Doe her second in-service examination score was
poor, an issue she needed to address. Later, however, Doe
learned this wasn’t true: Her score was in the 70th percentile,

6
and Dr. Eiser had received misinformation. She asked Dr. Roe
to report her improvement to the fellowship she’d applied to,
but he refused. Mercy later told Doe that to remain in the
program, she’d have to agree to a corrective plan. Reluctantly,
she signed on.
Dr. Roe’s conduct continued into Spring 2013. Once
while Doe was sitting alone with Dr. Roe at a computer
reviewing radiology reports, he reached across her body and
placed his hand on hers to control the mouse, pressing his arm
against her breasts in the process. She pushed herself back in her
chair, stood up, and protested. Another time, when a physician
expressed interest in Doe, Dr. Roe became jealous and told Doe
she shouldn’t date him. Later, in April 2013 Dr. Roe told
another resident to remove Doe’s name as coauthor from a
research paper she’d contributed to. Doe complained, but Dr.
Roe said she was acting unprofessionally and ordered her to
another meeting with Dr. Eiser. At that meeting Doe again told
Dr. Eiser about Dr. Roe’s conduct over the past year. Dr. Eiser,
however, said the other residents loved Dr. Roe and told her to
apologize to him. She did, but Dr. Roe wouldn’t accept it,
calling it insincere. Dr. Eiser suspended Doe, recommending
another visit to the psychiatrist.
Thereafter on April 20, 2013 Doe received a letter from
Mercy stating she’d been terminated but could appeal. She
appeared before an appeals committee four days later where she
described Dr. Roe’s behavior. Dr. Roe appeared there too
advocating for her dismissal. He did so, she says, because she’d
rejected his advances. The committee upheld Doe’s dismissal,
giving her five days to bring another appeal. She declined and
quit the program, with Mercy accepting her resignation. Since
then, no other residency program has accepted her, blocking her
from full licensure.

7
 * * *
Doe sued Mercy in the District Court on April 20, 2015,
exactly two years after she learned she’d been dismissed.
Seeking damages and equitable relief, she alleges six claims,
three under Title IX — retaliation, quid pro quo, and hostile
environment — and three under Pennsylvania law — contract-
based sex discrimination, wrongful termination, and breach of
the covenant of good faith and fair dealing. She concedes she
never filed a charge with the Equal Employment Opportunity
Commission, or EEOC, under Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e et seq.
Ultimately the District Court dismissed the third iteration
of Doe’s complaint under Federal Rule of Civil Procedure
12(b)(6). Title IX doesn’t apply to Mercy, the court held,
because it’s not an “education program or activity” under 20
U.S.C. § 1681(a). Even if Title IX did apply, it stated, Doe can’t
use Title IX to “circumvent” Title VII’s administrative
requirements, as Congress intended Title VII as the “exclusive
avenue for relief” for employment discrimination. 158 F. Supp.
3d 256, 261 (E.D. Pa. 2016). The court also found Doe’s hostile
environment claim untimely. Having dismissed all Doe’s Title
IX claims, the court declined jurisdiction of her state law claims.
Doe timely appealed.
II
The District Court had jurisdiction under 28 U.S.C. §§
1331 and 1367(a), and we have it under 28 U.S.C. § 1291. We
exercise plenary review of a Rule 12(b)(6) dismissal, In re
Asbestos Products Liability Litigation (No. VI), 822 F.3d 125,
131 (3d Cir. 2016), affirming if the plaintiff failed to allege
plausible claims, see Ashcroft v. Iqbal, 556 U.S. 662, 677–80
(2009).

8
 III
Our analysis is threefold. We address whether Title IX
applies to Mercy, whether Doe’s private causes of action are
cognizable under Title IX, and what to do about Doe’s state law
claims. Title IX’s applicability to Mercy is first.
A
We start, of course, with Title IX’s language, North
Haven Board of Education v. Bell, 456 U.S. 512, 520 (1982),
which says, “No 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) (emphasis added). We must decide, then, if
Mercy’s operation of a residency program makes it an
“education program or activity” under Title IX.
We note this question of first impression reaches far
beyond one ex-resident’s private lawsuit. It touches on the
Executive’s very power to address gender discrimination in
residency programs under existing federal law. Congress
enacted Title IX under its Spending Clause powers, making it in
the nature of a contract: In accepting federal funds, States agree
to comply with its mandate. Jackson v. Birmingham Bd. of
Educ., 544 U.S. 167, 181–82 (2005). Given its origins, Title
IX’s only (express) enforcement mechanism is through
agencies’ regulation of federal funding. Congress directs
agencies to effectuate § 1681(a) by, among other means, the
“termination of or refusal to grant or to continue” funding to
education programs. 20 U.S.C. § 1682; see Fitzgerald v.
Barnstable Sch. Comm., 555 U.S. 246, 255 (2009). Today this
directive applies afar: Twenty-one federal agencies currently
enforce Title IX. See Nondiscrimination on the Basis of Sex in
Education Programs or Activities Receiving Federal Financial

9
Assistance, 65 Fed. Reg. 52,858 (Aug. 30, 2000) [hereinafter
Title IX Common Rule] (codified in various sections of the
Code of Federal Regulations). And no other federal statute
empowers agencies to restrict funding from education programs
engaging in sex discrimination. Title VI bars only race, color,
and national origin discrimination, not sex discrimination. 42
U.S.C. § 2000d; see Gebser v. Lago Vista Indep. Sch. Dist., 524
U.S. 274, 286 (1998). Title VII is rooted in the Commerce
Clause and § 5 of the Fourteenth Amendment, not the Spending
Clause. See Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 367
(1978) (Brennan, White, Marshall, & Blackmun, JJ., concurring
in the judgment in part and dissenting in part); Gebser, 524 U.S.
at 286–87. And only a “citizen of the United States” or “person
within the jurisdiction thereof” can sue under 42 U.S.C. § 1983
for unconstitutional sex discrimination in education programs.
See Fitzgerald, 555 U.S. at 252, 255–56. Mindful of Title IX’s
place in this intricate scheme, we tread carefully.
* * *
To resolve whether Mercy’s residency program makes it
an “education program or activity,” we must square Title IX’s
definition of a “program or activity,” codified at 20 U.S.C. §
1687, with § 1681(a)’s language “education program or
activity.” This requires a brief look at Title IX’s history.
Patterned after Title VI, Title IX was enacted through the
Education Amendments of 1972 in which Congress set out §
1681(a)’s “education program or activity” language. In Grove
City College v. Bell, however, the Supreme Court read that
phrase narrowly, holding that the receipt of federal funds by a
particular program within an institution “does not trigger
institutionwide coverage” under Title IX. 465 U.S. 555, 573
(1984). Congress disagreed. Overruling Grove City College it
passed the Civil Rights Restoration Act of 1987, or CRRA, to

10
define the phrase “program or activity” broadly in provisions of
four civil rights statutes — Title VI, 42 U.S.C. § 2000d-4a; the
Rehabilitation Act, 29 U.S.C. § 794(b); the Age Discrimination
in Employment Act, 42 U.S.C. § 6107(4); and Title IX, 20
U.S.C. § 1687. See NCAA v. Smith, 525 U.S. 459, 465–66 & n.3
(1999).
As amended by the CRRA, Title IX now says in § 1687
that “program or activity” means “all of the operations” of the
following kinds of entities, “any part of which” is extended
federal funding:
 state or local government instrumentalities, 20 U.S.C. §
1687(1);
 colleges, universities, postsecondary institutions, public
systems of higher education, local educational agencies,
vocational education systems, and “other” school
systems, id. § 1687(2);
 “entire” corporations, partnerships, “other” private
organizations, and sole proprietorships if assistance is
extended to them “as a whole” or they’re “principally
engaged in the business of providing education, health
care, housing, social services, or parks and recreation,”
id. § 1687(3)(A);
 “entire” plants or other “comparable, geographically
separate” facilities in the case of “any other”
corporation, partnership, private organization, or sole
proprietorship not described in subsection (3)(A), id. §
1687(3)(B); and
 “any other entity” established by “two or more” entities
described in subsections (1) through (3), id. § 1687(4).

11
 In enacting § 1687, however, Congress retained in §
1681(a) the modifier “education” before “program or activity.”
It left “education” undefined and gave no guidance to reconcile
§ 1687’s broad phrase “program or activity” with § 1681(a)’s
ostensibly narrower language. Case law is scant on the issue.
The Supreme Court has never addressed it. Nor have we.
Down this unmarked path we must now travel.
How did the District Court navigate it? It focused on the
fact that in enacting the CRRA, Congress kept the word
“education” in § 1681(a). That, combined with § 1681(c) —
which defines an “educational institution” in part as “any public
or private preschool, elementary, or secondary school, or any
institution of vocational, professional, or higher education” —
“clearly” contemplated cabining Title IX to education programs
“in the sense of schooling.” 158 F. Supp. 3d at 260. Title IX
thus couldn’t apply to Mercy, it held, as residents already have a
degree, don’t pay tuition, and are paid for their services and
protected by labor laws.
Respectfully, we find this approach wanting. Sections
1681(a) and 1682 extend Title IX to “education programs or
activities,” not to the “educational institutions” of § 1681(c).
Where Congress used specific language in one part of a statute
but different language in another, we presume different
meanings were intended. Sosa v. Alvarez-Machain, 542 U.S.
692, 711 n.9 (2004). That’s especially so here, where Congress
used “educational institution” only in provisions to describe
where Title IX doesn’t control. See 20 U.S.C. §§ 1681(a)(1)–
(5), (7)–(8), 1681(b), 1686; Jackson, 544 U.S. at 175 (Section
1681(a)’s subsections are “specific, narrow exceptions” to Title
IX.); North Haven, 456 U.S. at 514 & n.1 (same). We also
query: If Congress intended to limit education programs or
activities only to educational institutions “in the sense of

12
schooling,” why did it enact detailed provisions expressly
exempting noneducational institutions — like social fraternities,
the YMCA, and the Girl Scouts — from Title IX’s reach? See,
e.g., 20 U.S.C. § 1681(a)(6). Those organizations would have
already been impliedly exempt from Title IX, rendering
superfluous § 1681(a)’s express exemptions for them. Because
we strive to avoid superfluity in construing statutes, see Corley
v. United States, 556 U.S. 303, 314 (2009), we reject this
reading of Title IX.
What direction does Mercy suggest we take? Tacitly
conceding that § 1681(c) isn’t the way, they abandon it for §
1687(3)(A)(ii). That provision says “program or activity” means
all the operations of a private entity “principally engaged in the
business of providing education, health care, housing, social
services, or parks and recreation.” But because § 1681(a) says
“education program or activity,” Mercy tells us we’re to ignore
the words “health care, housing, social services, or parks and
recreation” and hold that Title IX applies only to private entities
“principally engaged in the business of providing education.”
Applying that reading, Mercy deems the result inevitable: A
private hospital like Mercy that employs physicians in its own
residency program is “quite plainly” not principally engaged in
the education business. Mercy Br. 8–9.
If only it were so plain. Yet no part of Title IX says it
reaches only entities “principally engaged in the business of
providing education.” Quite the opposite. Section 1687 leaves
space aplenty for a variety of entities irrespective of what
they’re “principally” engaged in — for example, state and local
government instrumentalities, private entities extended
assistance as a whole, other private entities’ entire plants or
separate facilities, and any entity established by two or more
covered entities. More important, Mercy’s approach strikes out

13
considerable portions of § 1687(3)(A)(ii)’s text. Doe’s helpful
visual aid puts that much on display: Mercy suggests Title IX
applies only to private entities “principally engaged in the
business of providing education, health care, housing, social
services, or parks and recreation.” Reply Br. 8 (strikethrough in
original). By that reading we cannot abide, for it violates a
“most basic” interpretive rule that a statute is to be construed so
that effect is given to all its provisions, so no part will be
inoperative or superfluous, void or insignificant. Corley, 556
U.S. at 314.
It is then Doe who, we think, charts the soundest course.
She says, and we agree, there’s no reason to read the phrase
“education program or activity” so narrowly. The Supreme
Court has twice instructed us that, to give Title IX the scope its
origins dictate, we’re to accord it a sweep as broad as its
language. North Haven, 456 U.S. at 521; see Jackson, 544 U.S.
at 175. And indeed the ordinary meaning of “education” — a
word Congress has yet to define — is “very broad.” Roubideaux
v. North Dakota Dep’t of Corrs. & Rehab., 570 F.3d 966, 977
(8th Cir. 2009). Congress expressly exempted specific kinds of
programs from Title IX’s reach — like military academies,
religious schools, and sororities, see 20 U.S.C. § 1681(a)(1)–(9)
— so we’re hesitant to impose further restrictions without
strong justifications from Title IX’s text. See North Haven, 456
U.S. at 521–22 (The “absence of a specific” proffered exclusion
from § 1681(a)’s exceptions “tends to support” that it shouldn’t
be inferred.); Jeldness v. Pearce, 30 F.3d 1220, 1225 (9th Cir.
1994) (Because § 1681(a) lists specific exemptions, others are
not to be “judicially implied.”). The statute offers no such
justification, so we reconcile § 1687 with § 1681(a) as follows.
Like the Second Circuit we hold that a “program or
activity” under § 1687 is an “education program or activity”

14
under § 1681(a) if it has “features such that one could
reasonably consider its mission to be, at least in part,
educational.” O’Connor v. Davis, 126 F.3d 112, 117 (2d Cir.
1997). This accords with Title IX’s text and structure. It lines up
with the Eighth and Ninth Circuits’ applications of Title IX
beyond educational institutions “in the sense of schooling” to
entire state-prison systems offering inmates educational
programs. See Klinger v. Dep’t of Corrs., 107 F.3d 609, 613–16
& n.5 (8th Cir. 1997); Roubideaux, 570 F.3d at 976–79;
Jeldness, 30 F.3d at 1224–25. It’s consistent with the First
Circuit’s application of Title IX to a university’s medical
residency program. See Lipsett v. Univ. of Puerto Rico, 864 F.2d
881 (1st Cir. 1988). And it’s in step with how twenty-one
federal agencies, including the Departments of Education and
Health and Human Services, have interpreted the statute. See 34
C.F.R. § 106.1; 45 C.F.R. § 86.1; Title IX Common Rule,
supra, at 52,865 (all saying Title IX applies to “any” education
program or activity “whether or not” it’s “offered or sponsored
by an educational institution”); U.S. Amicus Br. 18–19 n.7. We
adopt it.
We recognize, however, that creative minds could
conceivably read the word “education” in Title IX to
“encompass every experience of life,” Roubideaux, 570 F.3d at
977, transforming Title IX into a remedy for any dispute in
which someone is “potentially” learning something, Doe, 158 F.
Supp. 3d at 260. We see no sign Congress intended as much.
Indeed by merely including the word “education” in § 1681(a),
Congress signified that Title IX has some boundary. We
endeavor here to delimit it.
We note first that Title IX’s application turns primarily
on whether the defendant-entity’s questioned program or
activity has educational characteristics. The plaintiff’s

15
characteristics — for example, whether she’s a student,
employee, or something else — may be relevant in some cases,
but they aren’t necessarily dispositive. That caveat aside, we
highlight here several features that support deeming a “program
or activity” an “education program or activity” under Title IX,
emphasizing that particular features (or other features not here
listed) may be more or less relevant depending on the unique
circumstances of each case. In no particular order, these features
are that (A) a program is incrementally structured through a
particular course of study or training, whether full- or part-time;
(B) a program allows participants to earn a degree or diploma,
qualify for a certification or certification examination, or pursue
a specific occupation or trade beyond mere on-the-job training;
(C) a program provides instructors, examinations, an evaluation
process or grades, or accepts tuition; or (D) the entities offering,
accrediting, or otherwise regulating a program hold it out as
educational in nature. Accord O’Connor, 126 F.3d at 117–18
(Education programs “typically provide instructors, evaluations,
and offer a particular course of training.”). These guidelines are,
we think, in keeping with the common understanding of the
word “education” prevalent when Title IX was enacted. See,
e.g., Webster’s New World Dictionary 444 (2d ed. 1970)
(Education is the “process of training and developing the
knowledge, skill, mind, character, etc., esp. by formal
schooling; teaching; training.”); Taniguchi v. Kan Pac. Saipan,
Ltd., 132 S. Ct. 1997, 2002 (2012) (“When a term goes
undefined in a statute,” we give it its “ordinary meaning.”).
We end with this: Whether a program or activity is
sufficiently educational under Title IX is a mixed question of
law and fact. When the facts are uncontested, the judge decides
the matter. Factual disputes material to her legal conclusion are,
however, left for the finder of fact.

16
 * * *
Applying this reading, we identify two plausible ways
Mercy’s residency program makes it an “education program or
activity” under Title IX.
First Doe’s allegations raise the plausible inference that
Mercy is a private organization principally engaged in the
business of providing healthcare, 20 U.S.C. § 1687(3)(A)(ii),
whose operation of an ACGME-accredited residency program
makes its mission, at least in part, educational, see O’Connor,
126 F.3d at 117; 20 U.S.C. § 1681(a). Doe says, and we accept
as true, that she was enrolled in a multiyear regulated program
of study and training in diagnostic radiology at Mercy. That
program required her to learn and train under faculty members
and physicians, attend lectures and help present case
presentations under supervision, participate in a physics class on
a university campus, and sit for annual examinations. Had Doe
completed Mercy’s program, she would have been eligible to
take the American Board of Radiology’s certification
examinations, and passing scores there would have certified her
to practice for six years. Doe also says Mercy held out its
residency programs as educational in nature and that the
ACGME calls residency programs “structured educational
experience[s].” App. 103. These allegations, we think, satisfy
Federal Rule of Civil Procedure 8. See Iqbal, 556 U.S. at 677–
80. Courts have repeatedly recognized the educational qualities
of residency programs in other contexts, even where ultimately
deeming residents nonstudents. See, e.g., Mayo Found. for Med.
Educ. & Research v. United States, 562 U.S. 44, 47 (2011)
(“Most doctors who graduate from medical school” pursue
“additional education in a specialty to become board certified to
practice in that field.”); id. at 60 (Residents are “engaged in a
valuable educational pursuit” and are “students of their craft.”);

17
Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 507 (1994)
(Because residents “learn both by treating patients and by
observing other physicians do so,” graduate medical education
programs “take place in a patient care unit (most often in a
teaching hospital), rather than in a classroom.”); McKeesport
Hosp., 24 F.3d at 525 (Residencies are a “vital component” of
“medical education.”); Johnson v. Baptist Med. Ctr., 97 F.3d
1070, 1072 (8th Cir. 1996) (Residencies combine “features of
both employment and academic study.”); Lipsett, 864 F.2d at
897 (A resident is “both an employee and a student.”). So too
has Congress. See, e.g., 15 U.S.C. § 37b(b)(1)(B)(i) (A
“graduate medical education program” is a “residency program”
for “medical education and training.”).
We hasten to note, however, that our assessment of the
educational features of Mercy’s residency program does not
imply that one must perform a program-specific analysis on
each and every prerequisite to Title IX coverage. For instance,
whether a covered program or activity receives “Federal
financial assistance,” 20 U.S.C. § 1681(a), is determined by
reference to the “entire” entity or “whole” organization, id. §
1687. Congress made that clear in overruling Grove City
College, 465 U.S. 555. See S. Rep. No. 100-64, at 4 (1987).
With respect to “Federal financial assistance” for purposes of
Title IX coverage, our analysis here does not alter the
requirement of an institution-wide assessment.
Second we find it plausible Mercy’s operation of a
residency program makes its mission, at least in part,
educational under Title IX because of Mercy’s “affiliat[ion]”
with Drexel Medicine, App. 104, a university program plausibly
covered by Title IX, see 20 U.S.C. § 1687(2)(A). Two decisions
guide us — Lam v. Curators of UMKC Dental School, 122 F.3d
654 (8th Cir. 1997), and O’Connor from the Second Circuit.

18
 In Lam a clinician hired a university dental student to
work at his private office “[un]affiliated” with the university.
122 F.3d at 655. Alleging the clinician sexually assaulted her
there, the student sued the university under Title IX. The
university argued that she failed to show a “nexus” between the
private office and the university, id. at 656, and the Eighth
Circuit agreed, holding that the “independent, private dental
practice” wasn’t a “program or activity of the University” under
Title IX. Id. An education program, the court explained, is one
“controlled by” and that inures “some benefit” to the covered
institution. Id. In the student’s case, it found, the clinician
conferred “no benefit” to the university by operating a
“separate, competing” clinic, as the university exercised “no
control” over it and didn’t provide it “staff, funding,” or “any
other support.” Id.
Similarly in O’Connor a college arranged for its student
to serve as an unpaid intern at a hospital. 126 F.3d at 113.
Alleging she was sexually harassed there, the intern sued the
college and hospital under Title IX, but the college was
dismissed from the case. The intern argued that Title IX reached
the hospital because it accepted interns and thus operated a
vocational training program. Id. at 116. Framing the issue as
whether Title IX applied to a hospital that allowed students to
volunteer from a college with which it had “no affiliation,” the
Second Circuit disagreed. Id. at 117. The hospital, it found,
maintained “none of the characteristics associated with being an
educator,” unlike, for example, a “teaching hospital’s ‘mixed
employment-training context.’” Id. at 118 (quoting Lipsett, 864
F.2d at 897). And the college’s status as an education program
couldn’t be “imputed” to the hospital, it held, because there was
no evidence of an “institutional affiliation,” a “written
agreement binding” them, shared staff, or funds “circulated
between them.” Id.

19
 Our case is different. Unlike Lam where the private
dental office was “[un]affiliated” with the university, 122 F.3d
at 655, here we accept as true that Mercy’s residency program is
“affiliated” with Drexel Medicine, App. 104. Doe supports that
contention with allegations that she took a physics class “taught
on Drexel’s campus,” App. 106, and that Mercy provided the
“clinical bases” for Drexel Medicine’s emergency medicine
residency, App. 104. It’s thus plausible, we think, that Mercy’s
residency program inured “some benefit” to Drexel Medicine
(and vice versa) and that these entities shared “staff, funding,”
and “other support.” Lam, 122 F.3d at 656; see Iqbal, 556 U.S.
at 679 (Rule 8’s inquiry is a “context-specific task” requiring us
to draw on our “judicial experience and common sense.”).
O’Connor is distinguishable too. There the hospital
accepted student-interns from a college with which it had “no
institutional affiliation.” 126 F.3d at 118. Here, in contrast, Doe
expressly alleges such an affiliation between Mercy and Drexel
Medicine. And given her supporting allegations, we find it
plausible to infer an “agreement binding” them and the sharing
of “staff” and “funds.” Id. Given these alleged connections, it’s
plausible Mercy’s operation of a residency program affiliated
with Drexel Medicine makes its mission, at least in part,
educational under Title IX, satisfying § 1681(a). We will
therefore vacate the District Court’s order so far as it concludes
otherwise.
* * *
Of our first inquiry just one matter remains. In a lengthy
footnote Mercy claims it doesn’t receive “Federal financial
assistance” under Title IX because its Medicare payments stem
from “contracts of insurance.” Mercy Br. 7–8 n.2. Mercy,
however, made no such argument in the District Court. Our rule
is well established in that circumstance: Theories not raised

20
squarely there cannot be surfaced for the first time on appeal.
Lesende v. Borrero, 752 F.3d 324, 333 (3d Cir. 2014); see
United States v. Joseph, 730 F.3d 336, 338–42 (3d Cir. 2013).
Seeing no reason to depart from this rule (Mercy offers none),
we decline to consider this argument, particularly as “contracts
of insurance” in federal civil rights statutes intend to refer to
contracts in the traditional sense, like those involving
“individual bank accounts in a bank with federally guaranteed
deposits.” United States v. Baylor Univ. Med. Ctr., 736 F.2d
1039, 1048 (5th Cir. 1984). We thus assume without deciding
that Mercy receives “Federal financial assistance” under Title
IX, leaving it for the District Court to address on remand.
B
We continue to our second inquiry — whether Doe’s
private causes of action are cognizable under Title IX. As we
said above, Title IX provides just one express enforcement
mechanism: action through federal agencies. See 20 U.S.C. §
1682. But in Cannon v. University of Chicago the Supreme
Court held that Title IX implies a cause of action for private
litigants. 441 U.S. 677, 717 (1979). We must decide, therefore,
if Cannon extends to Doe’s Title IX retaliation, quid pro quo,
and hostile environment claims.
Mercy says, and the District Court agreed, a roadblock
stands in Doe’s way — Title VII. Residents are employees,
Mercy submits, and Title VII governs employment
relationships, prohibiting discrimination based on sex. See 42
U.S.C. §§ 2000e-2(a)(1), 2000e-3(a); Covington v. Int’l Assoc.
of Approved Basketball Officials, 710 F.3d 114, 118–19 (3d Cir.
2013). But, Mercy notes, Title VII also sets out elaborate
administrative requirements an employee must satisfy before
seeking relief in court. See Burgh v. Borough Council of
Borough of Montrose, 251 F.3d 465, 469–71 (3d Cir. 2001).

21
Title IX is, in contrast, bare. While it requires proof an
appropriate person had notice of the alleged discrimination so
the institution had an opportunity to address it, see 20 U.S.C. §
1682; Jackson, 544 U.S. at 181; Gebser, 524 U.S. at 290, Title
IX doesn’t have administrative hurdles like Title VII. This
means Title IX plaintiffs can “file directly in court” under
Cannon’s implied cause of action. Fitzgerald, 555 U.S. at 255.
Given Title VII’s carefully-drawn framework, Mercy contends,
the District Court was right that Congress intended Title VII as
the sole avenue of private relief for employees of federally-
funded education programs who allege sex discrimination.
Private Title IX claims alleging the same conduct, Mercy
argues, are not cognizable because they’d allow education-
program employees to plead their way round Title VII’s
administrative scheme.
We agree with just one part of this assessment. While we
won’t (and can’t) speak for all residents, we agree here it’s
plausible Doe was Mercy’s “employee” notwithstanding any
other status the law may or may not have reposed on her (for
example, a “student”). We rely on Nationwide Mutual Insurance
Co. v. Darden, 503 U.S. 318 (1992), to decide if a person is an
“employee” under Title VII, see Covington, 710 F.3d at 119.
Applied to Doe’s complaint, Darden’s factors indeed suggest
she was an employee under Title VII. See 503 U.S. at 323–24.
For instance, Mercy was the source of the
instrumentalities and tools of Doe’s work as a resident, the
location of Doe’s work was at Mercy, and Mercy assigned Doe
projects and tasks. See id. Doe had no discretion over when and
how long she worked beyond ACGME guidelines limiting her
workweek to 80 hours. See id. And assuming she was paid (a
plausible assumption, we think), her paychecks were taxed like
other employees under the Federal Insurance Contributions Act,

22
or FICA. See id.; see Mayo Found., 562 U.S. at 47, 60. She had
no apparent role in hiring or paying assistants, her work was
part of Mercy’s regular business of providing healthcare to
patients, and she could bargain collectively as a resident like
other employees. See Darden, 503 U.S. at 323–24; Boston Med.
Ctr. Corp., 330 N.L.R.B. 152, 168 (1999). In sum, we agree
with Mercy that, had Doe complied with Title VII’s
administrative requirements, she could have filed Title VII
claims in court as an “employee” like other residents have
before. See, e.g., Takele v. Mayo Clinic, 576 F.3d 834 (8th Cir.
2009).
Nevertheless we reject the rest of Mercy’s argument.
Title VII’s concurrent applicability does not bar Doe’s private
causes of action for retaliation and quid pro quo harassment
under Title IX. Six Supreme Court decisions guide us.
* * *
First is Johnson v. Railway Express Agency, Inc., 421
U.S. 454 (1975), which involved whether the timely filing of an
EEOC charge alleging race discrimination under Title VII tolled
the limitations period on a claim alleging race discrimination
under 42 U.S.C. § 1981, a statute without administrative
requirements. Though it ultimately found the latter claim
untimely, the Court held that the “remedies available under Title
VII and under § 1981, although related, and although directed to
most of the same ends, are separate, distinct, and independent.”
Id. at 461. Despite Title VII’s “range” and “design as a
comprehensive solution” for “invidious discrimination in
employment,” the Court explained, a private-sector employee
“clearly is not deprived of other remedies” and isn’t “limited to
Title VII in his search for relief.” Id. at 459. Title VII “manifests
a congressional intent to allow an individual to pursue
independently his rights under both Title VII and other

23
applicable” federal statutes. Id. (quoting Alexander v. Gardner-
Denver Co., 415 U.S. 36, 48 (1974)). The employer argued that
allowing Johnson’s § 1981 claim to proceed might permit his
circumvention of Title VII’s administrative requirements, going
against Congress’s intent. But the Court disagreed:
Conciliation and persuasion through the [EEOC’s]
administrative process [under Title VII], to be sure,
often constitute a desirable approach to settlement of
disputes based on sensitive and emotional charges of
invidious employment discrimination. We recognize,
too, that the filing of a lawsuit [under § 1981] might
tend to deter efforts at conciliation, that lack of success
in the legal action could weaken the [EEOC’s] efforts
to induce voluntary compliance, and that a suit is
privately oriented and narrow, rather than broad, in
application, as successful conciliation tends to be. But
these are the natural effects of the choice Congress has
made available to the claimant by its conferring upon
him independent administrative and judicial remedies.
The choice is a valuable one. Under some
circumstances, the administrative route may be highly
preferred over the litigatory; under others the reverse
may be true.
Id. at 461 (emphasis added). The Court thus declined to infer
any positive preference for Title VII without a more “definite”
congressional expression. Id.
A year later came Brown v. General Services
Administration, 425 U.S. 820 (1976), which involved an
amendment to Title VII (see 42 U.S.C. § 2000e-16) that waived
sovereign immunity to grant federal employees access to
administrative and judicial relief from workplace
discrimination. Alleging race discrimination, an ex-GSA

24
employee filed claims under § 1981 and § 2000e-16, but the
latter was untimely under the amendment’s jurisdictional
limitations period. Holding that Congress intended § 2000e-16
as the “exclusive, pre-emptive administrative and judicial
scheme for the redress of federal employment discrimination,”
425 U.S. at 829 (emphasis added), the Supreme Court affirmed
dismissal of Brown’s case for want of jurisdiction. Critically,
the Court distinguished Johnson as “inapposite,” for Johnson
held only that Title VII doesn’t “pre-empt” other remedies in
“private employment,” not federal employment. Id. at 833.
Johnson’s inapplicability was especially plain, the Court found,
because private employment doesn’t raise “problems of
sovereign immunity.” Id.
Then in 1979, seven years after Title IX’s enactment, the
Court decided Cannon, 441 U.S. 677, in which an applicant
sued a medical school alleging it denied her admission based on
her sex, in violation of Title IX. The Seventh Circuit affirmed
dismissal of her claim, holding that Congress intended Title
IX’s administrative device as the “exclusive means” to enforce
the statute. 441 U.S. at 683–84. The Supreme Court disagreed.
Reading § 1681(a), it inferred a private cause of action for the
applicant to allege the medical school “rejected her” based on
sex, id. at 688–89, notwithstanding that Title IX doesn’t
“expressly authorize” private action, id. at 683. Title IX
“explicitly confers a benefit on persons discriminated against”
based on sex, the Court held, and the plaintiff was “clearly a
member of that class for whose special benefit the statute was
enacted.” Id. at 694 (emphasis added).
Three years later came North Haven, 456 U.S. 512, in
which ex-school employees filed Title IX agency actions
alleging sex discrimination against two school boards. Agencies
had promulgated regulations interpreting Title IX to extend to

25
sex-based employment discrimination. See id. at 516 (citing, for
example, 34 C.F.R. § 106.51(a)(1)). The boards sued the
agencies, seeking to declare these regulations ultra vires under
Title IX. Voting six to three, the Supreme Court upheld them, as
the agencies had fairly read § 1681(a)’s “broad directive that ‘no
person’ may be discriminated against” based on sex to
encompass “employees as well as students.” Id. at 520
(emphasis added). The Court rejected the argument that Title IX
shouldn’t extend to private employment because employees
have “remedies other than those available under Title IX,” like
Title VII. Id. at 535 n.26. Even if “alternative remedies are
available and their existence is relevant,” it rejoined, “Congress
has provided a variety of remedies, at times overlapping, to
eradicate employment discrimination.” Id. (citing, among other
decisions, Johnson, 421 U.S. at 459).
Joined by Chief Justice Burger and Justice Rehnquist,
Justice Powell dissented. Given Title VII’s “comprehensive”
scheme and “carefully prescribed procedures” for EEOC
conciliation, he would have held that Title IX doesn’t extend to
private employment, as Title IX has “no time limits for action,
no conciliation provisions, and no guidance as to procedure.” Id.
at 552 (Powell, J., dissenting). He also thought it “unlikely”
Congress would “duplicate” enforcement of Titles VII and IX in
private-sector employment by “different departments of
government with different enforcement powers, areas of
expertise, and enforcement methods.” Id. at 553.
A decade later the Court decided Franklin v. Gwinnett
County Public Schools, 503 U.S. 60 (1992), in which a student
sought damages for sexual harassment under Title IX.
Acknowledging Cannon’s implied cause of action and relying
on the presumption that “all appropriate remedies” are available

26
for private litigants, id. at 66, the Court held that damages are
available in private Title IX actions, id. at 76.
Finally in 2005 the Court decided Jackson v.
Birmingham Board of Education, 544 U.S. 167, in which a
school board relieved a high school “employee” of his coaching
position after he complained that the girls’ basketball team
received unequal treatment based on sex. Id. at 171. He sued in
his private capacity, bringing a Title IX retaliation claim.
Reversing the Eleventh Circuit, the Court allowed the
employee’s retaliation claim to proceed under Cannon. Id. at
173–74. If funding recipients were “permitted to retaliate
freely,” the Court held, “individuals” who witness sex
discrimination would be “loath to report it” and “all manner of
Title IX violations might go unremedied.” Id. at 180.
* * *
From these six decisions we derive four guiding
principles. First private-sector employees aren’t “limited to
Title VII” in their search for relief from workplace
discrimination. Johnson, 421 U.S. at 459. The Supreme Court
has so held despite Title VII’s “range” and “design as a
comprehensive solution” for “invidious discrimination in
employment.” Id.; see Brown, 425 U.S. at 833; North Haven,
456 U.S. at 535 n.26.
Second it is a matter of “policy” left for Congress’s
constitutional purview whether an alternative avenue of relief
from employment discrimination might undesirably allow
circumvention of Title VII’s administrative requirements. North
Haven, 456 U.S. at 535 n.26 (Concurrent enforcement was a
“policy” consideration for Congress to weigh, and we cannot
ignore Title IX’s language and history even if we disagree with
that legislative choice.); Johnson, 421 U.S. at 461 (These are the
“natural effects of the choice Congress has made available” to

27
an employee “by its conferring upon him independent
administrative and judicial remedies.”). North Haven is
particularly illuminating. Dissenting there, Justice Powell
described vividly the putative inefficiencies, redundancies, and
contradictions of parallel enforcement in private-sector
employment under Titles VII and IX. 456 U.S. at 540–55
(Powell, J., dissenting). But given Congress’s use of the
expansive term “person” in § 1681(a), six Justices rejected those
views, see id. at 514–40 & n.26 (majority opinion), signifying
they carry little, if indeed any, weight in our analysis.
Third the provision implying Title IX’s private cause of
action, 20 U.S.C. § 1681(a), encompasses employees, not just
students, see North Haven, 456 U.S. at 520 (Section 1681(a)’s
“broad directive” that no “person” may be discriminated against
based on sex encompasses “employees as well as students.”);
Cannon, 441 U.S. at 694 (A private cause of action exists under
Title IX for “persons” suffering sex discrimination.). Because §
1681(a) “neither expressly nor impliedly excludes employees
from its reach,” we’re to interpret it as “covering and protecting
these ‘persons,’” for Congress easily could have substituted
“‘student’ or ‘beneficiary’ for the word ‘person’ if it had wished
to restrict” § 1681(a)’s scope. North Haven, 456 U.S. at 521.
Fourth Title IX’s implied private cause of action extends
explicitly to employees of federally-funded education programs
who allege sex-based retaliation claims under Title IX. See
Jackson, 544 U.S. at 171. Retaliation against a “person,”
including an employee, because she “complained of sex
discrimination” is another form of “intentional sex
discrimination” actionable under Title IX. Id. at 174. Mercy, for
its part, urges a narrower reading of Jackson because, unlike
Doe, the plaintiff there likely had no recourse under Title VII.
But Jackson bears out no such qualification. Indeed Jackson

28
repeatedly underscores Title IX’s wide range. See, e.g., id. at
171 (Title IX retaliation claims extend to “individual[s],” not
individuals who can’t bring Title VII claims.); id. at 173
(Section 1681(a) “broadly” encompasses “any person.”); id. at
175 (Discrimination “covers a wide range of intentional unequal
treatment; by using such a broad term, Congress gave the statute
a broad reach.”); id. (Title IX is a “broadly written general
prohibition on discrimination.”); id. at 179 & n.3 (Title IX is
“broadly worded” and its “beneficiaries plainly include all
those” subjected to sex discrimination); id. at 183 (The Court’s
decisions since Cannon “consistently” have interpreted Title
IX’s private cause of action “broadly” to encompass “diverse
forms of intentional sex discrimination.”). And no subsequent
decision has narrowed Jackson as Mercy so urges. See Gomez-
Perez v. Potter, 553 U.S. 474, 483 (2008) (Jackson holds that a
“private party,” not a private party who can’t proceed under
Title VII, “may assert a retaliation claim under Title IX.”). This
principle thus holds true.
We note the Fifth and Seventh Circuits have held
categorically that Title VII provides the “exclusive remedy for
individuals alleging employment discrimination on the basis of
sex in federally funded educational institutions.” Lakoski v.
James, 66 F.3d 751, 753 (5th Cir. 1995); accord Waid v. Merrill
Area Pub. Schs., 91 F.3d 857, 861–62 (7th Cir. 1996),
abrogated in part on other grounds by Fitzgerald, 555 U.S. 246.
Allowing any private Title IX claim to proceed there, these
courts held, would “disrupt” Title VII’s “carefully balanced
remedial scheme for redressing employment discrimination.”
Lakoski, 66 F.3d at 754; see Waid, 91 F.3d at 861–62. Given the
four principles described above, we decline to follow Lakoski
and Waid, both of which went against the First and Fourth
Circuits’ decisions recognizing employees’ private Title IX
claims. See Lipsett, 864 F.2d at 895–97; Preston v. Virginia ex

29
rel. New River Cmty. Coll., 31 F.3d 203, 206 (4th Cir. 1994)
(Cannon extends to “employment discrimination on the basis of
gender by educational institutions receiving federal funds.”); see
also Summa v. Hofstra Univ., 708 F.3d 115, 131 n.1 (2d Cir.
2013) (noting Lakoski’s split from Lipsett and Preston). More
important, Lakoski and Waid did not address the Supreme
Court’s decisions in Johnson and Brown and the provisions of
North Haven rejecting “policy”-based rationales like those
Justice Powell set out in his dissent and that Mercy and its
amicus raise here. Finally, Lakoski and Waid were decided a
decade before the Supreme Court handed down Jackson, which
explicitly recognized an employee’s private claim under
Cannon. We thus question the continued viability of Lakoski
and Waid and see fit here to deviate from them.
We now apply these principles to Doe’s Title IX claims.
Retaliation
For reasons already explained, we confirm that a private
retaliation claim exists for employees of federally-funded
education programs under Title IX notwithstanding Title VII’s
concurrent applicability. Jackson and the decisions before it
make plain: When a funding recipient retaliates against a
“person,” including an employee, because she complains of sex
discrimination, that’s “intentional discrimination” based on sex,
violative of Title IX and actionable under Cannon’s implied
cause of action. Jackson, 544 U.S. at 174; see North Haven, 456
U.S. at 520. Whether that person could also proceed under Title
VII is of no moment, for Congress provided a “variety of
remedies, at times overlapping, to eradicate” private-sector
employment discrimination. North Haven, 456 U.S. at 535 n.26;
see Johnson, 421 U.S. at 459; Brown, 425 U.S. at 833. It is thus
Congress’s prerogative — not ours — to alter that course.
Without addressing Jackson or Doe’s factual allegations,

30
the District Court dismissed Doe’s retaliation claim as inviable
under Title IX. Because we disagree, we will vacate that
dismissal and remand this claim for consideration in the first
instance. The following standards apply: Title VII’s familiar
retaliation framework “generally governs” Title IX retaliation
claims. Emeldi v. Univ. of Oregon, 698 F.3d 715, 723–25 & n.3
(9th Cir. 2012). Our fellow Courts of Appeals have so held. See,
e.g., Ollier v. Sweetwater Union High Sch. Dist., 768 F.3d 843,
867–68 (9th Cir. 2014) (Under Title IX, speaking out against
sex discrimination is “protected activity.”); Papelino v. Albany
Coll. of Pharm. of Union Univ., 633 F.3d 81, 91–92 (2d Cir.
2011); Preston, 31 F.3d at 206–07. Accordingly, to establish a
prima facie retaliation case under Title IX, Doe must prove she
engaged in activity protected by Title IX, she suffered an
adverse action, and there was a causal connection between the
two. Cf. Moore v. City of Philadelphia, 461 F.3d 331, 340–42
(3d Cir. 2006). If she makes this showing, the burden shifts to
Mercy to advance a legitimate, nonretaliatory reason for its
conduct. Id. at 342. If Mercy does so, Doe must show that
Mercy’s proffered explanation was false and that retaliation was
the real reason for the adverse action against her. Id.
Finally, Doe’s retaliation claim is timely under Title IX’s
two-year limitations period only so far as she alleges retaliatory
conduct that occurred on or after April 20, 2013, two years
before she filed this lawsuit. See Bougher v. Univ. of Pittsburgh,
882 F.2d 74, 78 (3d Cir. 1989) (For Title IX claims arising from
actions occurring in Pennsylvania and involving Pennsylvania
citizens, Pennsylvania’s two-year limitations period “applicable
to personal injury actions” controls.); Nat’l R.R. Passenger
Corp. v. Morgan, 536 U.S. 101, 110 (2002) (Retaliation is a
discrete act.). We note that, as Doe’s complaint currently stands,
only two incidents fit this temporal criteria — Mercy’s decision
to dismiss her by letter dated April 20, 2013 and Dr. Roe’s

31
advocating for her dismissal at her appeal hearing on April 24,
2013.
Quid Pro Quo Harassment
We likewise hold that a private quid pro quo claim exists
for employees of federally-funded education programs under
Title IX notwithstanding Title VII’s concurrent applicability, for
private-sector employees may pursue independently their rights
under both Title VII and other applicable federal statutes.
Johnson, 421 U.S. at 459; see North Haven, 456 U.S. at 535
n.26; Brown, 425 U.S. at 833. We decline here to infer any
positive preference for Title VII without a more definite
congressional expression — for example, a provision in Title
VII barring concurrent private Title IX claims. Cf. Johnson, 421
U.S. at 461.
In so holding, we recognize that the Supreme Court has
yet to extend Cannon to quid pro quo claims in the private
employment setting. But to exclude them would, we think,
ignore the import of the Court’s “repeated” holdings construing
the word discrimination in Title IX broadly and deeming sexual
harassment actionable under Cannon in other contexts. Jackson,
544 U.S. at 174–75 (citing Davis v. Monroe Cty. Bd. of Educ.,
526 U.S. 629, 643, 650 (1999); Gebser, 524 U.S. at 290–91;
Franklin, 503 U.S. at 74–75). As Jackson admonished, the term
“discrimination” in § 1681(a) covers a “wide range of
intentional unequal treatment.” Id. at 175 (emphasis added).
And quid pro quo sexual harassment — i.e., when tangible
adverse action results from an underling’s refusal to submit to a
higher-up’s sexual demands — is, by its very nature, intentional
unequal treatment based on sex. Burlington Indus., Inc. v.
Ellerth, 524 U.S. 742, 753–54 (1998); see id. at 752 (Sex
discrimination is “explicit” in a quid pro quo scenario.).
The Spending Clause’s notice requirements also pose no

32
obstacle to Title IX quid pro quo claims seeking damages in the
employment setting. Given the Clause’s contractual nature,
private Title IX damages actions are available only if the
funding recipient had adequate notice it could be liable for the
conduct alleged. Jackson, 544 U.S. at 181; cf. id. at 181–84
(Title IX retaliation claims meet this requirement.). But funding
recipients have known they could be sued privately for
intentional sex discrimination under Title IX “since 1979” when
the Court decided Cannon. Id. at 182. And quid pro quo sexual
harassment is, as we said above, intentional sex discrimination,
whether it occurs in an education or employment setting. The
First Circuit impliedly recognized as much in 1988 in allowing a
medical resident’s quid pro quo claim to proceed under Title IX.
See Lipsett, 864 F.2d at 898. And other courts have recognized
Title IX quid pro quo claims in other contexts. See, e.g.,
Papelino, 633 F.3d at 89; Klemencic v. Ohio State Univ., 263
F.3d 504, 510 (6th Cir. 2001). These decisions have, we think,
adequately apprised covered entities of their potential liability
for quid pro quo harassment in the employment setting, as the
Spending Clause demands.
The District Court, of course, never got this far. It
dismissed Doe’s quid pro quo claim as inviable under Title IX
without considering her factual allegations. We thus treat this
claim precisely the way we treated her retaliation claim: We will
vacate its dismissal and remand it for consideration in the first
instance. These standards apply: Like retaliation, Title VII’s
quid pro quo framework generally governs Title IX claims
alleging quid pro quo harassment. Our fellow Courts of Appeals
have again held as much. See, e.g., Papelino, 633 F.3d at 88–90;
Lipsett, 864 F.2d at 898–89. Accordingly, unwelcome sexual
advances, requests for sexual favors, or other verbal or physical
actions of a sexual nature constitute quid pro quo harassment
when (A) the plaintiff’s submission to that conduct is made

33
either explicitly or implicitly a term or condition of her
education or employment experience in a federally-funded
education program, or (B) submission to or rejection of that
conduct is used as the basis for education or employment
decisions that affect the plaintiff. Cf. Bonenberger v. Plymouth
Twp., 132 F.3d 20, 27 (3d Cir. 1997). Given Title IX’s Spending
Clause origins, a Title IX plaintiff seeking damages for quid pro
quo harassment must also prove 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
programs” and failed adequately to respond. Gebser, 524 U.S. at
290; see Papelino, 633 F.3d at 88–89. A response is inadequate
if the officer failed to provide one or if she provided one
amounting to deliberate indifference to the discrimination
alleged. Gebser, 524 U.S. at 290; see Papelino, 633 F.3d at 88–
89 (A recipient’s response to sex discrimination must be clearly
unreasonable “in light of known circumstances.” (citing Davis,
526 U.S. at 648)).
Finally, like her retaliation claim, Doe’s quid pro quo
claim is timely only so far as she alleges conduct that occurred
on or after April 20, 2013, two years before she sued Mercy. See
Bougher, 882 F.2d at 78; Bonenberger, 132 F.3d at 28
(distinguishing discrete acts of quid pro quo harassment from
acts aggregated to make out a hostile environment claim). And
again, as Doe’s complaint currently stands, only her April 20,
2013 dismissal and Dr. Roe’s appearance at her April 24, 2013
appeal hearing meet this criteria.
Hostile Environment
On Doe’s final Title IX claim — hostile environment —
we need not decide whether Title VII’s applicability renders it
inviable. Even if Title VII doesn’t preclude this claim, we agree

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with the District Court that it’s time-barred. Doe concedes only
two incidents occurred on or after April 20, 2013, within Title
IX’s two-year limitations period — her April 20, 2013 dismissal
and Dr. Roe’s appearance at her April 24, 2013 appeal hearing.
She says these incidents invoke the continuing-violation
doctrine recognized under Title VII. We hold otherwise.
Under that doctrine, discriminatory acts that aren’t
individually actionable may be aggregated to make out a Title
VII hostile environment claim. Mandel v. M & Q Packaging
Corp., 706 F.3d 157, 165 (3d Cir. 2013). These acts can occur at
any time if they’re linked in a pattern of actions continuing into
Title VII’s limitations period. Id. All the alleged acts, however,
must be part of the same unlawful employment practice, id. at
165–66, meaning they involved “similar conduct by the same
individuals, suggesting a persistent, ongoing pattern,” id. at 167.
It’s an open question in our Court whether this doctrine applies
under Title IX. Some courts suggest it does. See, e.g., Stanley v.
Trs. of California State Univ., 433 F.3d 1129, 1136 (9th Cir.
2006). Others suggest it doesn’t. See, e.g., Folkes v. New York
Coll. of Osteopathic Med., 214 F. Supp. 2d 273, 288–91
(E.D.N.Y. 2002). But we need not decide this question today.
Even were we to apply the doctrine to Doe’s Title IX hostile
environment claim, the two timely incidents she points to
wouldn’t invoke it.
Concerning Doe’s April 20, 2013 dismissal, Mercy’s
decision to dismiss her was a discrete act actionable on its own
as retaliation or quid pro quo harassment. It cannot
simultaneously support a hostile environment claim. See
Mandel, 706 F.3d at 165 (Discrete acts are not actionable if
time-barred even when related to timely acts. (citing Morgan,
536 U.S. at 113)). Concerning her April 24, 2013 appeal
hearing, Doe alleges only that Dr. Roe “advocated” for her

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dismissal there. App. 115. She doesn’t allege, as the District
Court noted, that he made sexualized comments or touched her
in a sexual way there. Dr. Roe’s conduct at the hearing,
therefore, wasn’t sufficiently similar to his pre-April 20, 2013
conduct to plausibly invoke the continuing-violation doctrine,
assuming we’d apply it here. Mandel, 706 F.3d at 167.
Accordingly, this claim is time-barred and we will affirm its
dismissal.
C
We come to our final inquiry — what to do about Doe’s
state law claims. The District Court declined supplemental
jurisdiction of them after dismissing her Title IX claims. A court
may do so under 28 U.S.C. § 1367(c)(3) when it dismisses all
claims over which it has original jurisdiction. Elkadrawy v.
Vanguard Grp., Inc., 584 F.3d 169, 174 (3d Cir. 2009). But we
hold that Doe’s Title IX retaliation and quid pro quo claims
endure. We will therefore reverse dismissal of her state law
claims and remand them for consideration in the first instance.
IV
For the reasons above, we will affirm in part and reverse
in part the District Court’s order and remand for further
proceedings consistent with this opinion.

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