F I L E D
United States Court of Appeals
Tenth Circuit
APR 10 2001
PUBLISH
PATRICK FISHER
Clerk
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
MARTY GOSSETT,
Plaintiff-Appellant,
v.
STATE OF OKLAHOMA ex rel.
BOARD OF REGENTS FOR LANGSTON
No. 98-5084
UNIVERSITY AND THE AGRICULTURAL
AND MECHANICAL COLLEGES,
ERNEST HOLLOWAY, President of
Langston University, CAROLYN
KORNEGAY, Dean of the School of
Nursing of Langston University,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Oklahoma
(D.C. No. 97-CV-115-K)
N. Kay Bridger-Riley (Gregory W. Alberty, with her on the briefs), Bridger-Riley
& Associates, P.C., Tulsa, Oklahoma, appearing for Plaintiff-Appellant.
David W. Lee, Lee & Gooch, P.C. (Michael Scott Fern, Oklahoma State
University, Stillwater, Oklahoma, with him on the brief), appearing for
Defendants-Appellees.
Before TACHA, Chief Judge, HOLLOWAY and SEYMOUR, Circuit Judges.
SEYMOUR, Circuit Judge.
Marty Gossett brought this action under 42 U.S.C. § 1983 and 20 U.S.C. §
1681(a) (Title IX) against the Board of Regents of Langston University, and the
University President and Dean of the University School of Nursing. Mr. Gossett
alleged that his involuntary withdrawal from the University’s nursing program
was caused by gender discrimination that violated his right to equal protection,
substantive and procedural due process, and Title IX. The district court granted
defendants’ motion for summary judgment, ruling that Mr. Gossett had failed to
present sufficient evidence to raise a jury question on his claims. We reverse and
remand for further proceedings.
I
We review the grant of summary judgment de novo, applying the same legal
standard employed by the district court under Fed. R. Civ. P. 56(c). See
Henderson v. Inter-Chem Coal Co., 41 F.3d 567, 569 (10th Cir. 1994).
“Summary judgment is appropriate only when ‘there is no genuine issue as to any
material fact and . . . the moving party is entitled to judgment as a matter of
law.’” Id. In making this assessment, the court must review all of the evidence in
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the record and draw all reasonable inferences in favor of the nonmoving party.
Reeves v. Sanderson Plumbing Prod., Inc., 120 S. Ct. 2097, 2110 (2000). The
court “may not make credibility determinations or weigh the evidence,” and “must
disregard all evidence favorable to the moving party that the jury is not required
to believe.” Id.
Viewed under these standards, the record reveals the following background
facts. Mr. Gossett successfully completed his first semester in the Nursing School
and enrolled as a second semester student in the Fall of 1994. He did well in all
of his classes that semester except for a Process II course taught by nursing
instructors Kathleen Clarke and Pamela DiVito-Thomas. When Mr. Gossett
began experiencing difficulty in the Process II course, he sought help and
counseling from the instructors. In response to defendants’ motion for summary
judgment, Mr. Gossett offered evidence, which the district court rejected and
which we discuss in detail below, to support his allegation that the instructors
discriminated against the male students in the class and that as a result he was not
given the same help, counseling, and opportunities to improve his performance as
provided to women nursing students. He ultimately received a D in the class,
which under Nursing School policy required his dismissal from the nursing
program. His administrative grade appeal was denied, and his numerous attempts
to obtain readmission were also unsuccessful.
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II
A. Title IX
Mr. Gossett brought a claim for gender discrimination under Title IX,
which provides that “[n]o person . . . shall, on the basis of sex, . . . be subjected
to discrimination under any education program or activity receiving Federal
financial assistance.” 20 U.S.C. § 1681 (a). Title IX thus prohibits gender
discrimination against students enrolled in federally supported educational
programs and has been construed to provide an implied cause of action to an
aggrieved individual. See Murray v. New York Univ. College of Dentistry, 57
F.3d 243, 248 (2d Cir. 1995). Courts have generally assessed Title IX
discrimination claims under the same legal analysis as Title VII claims. See id.;
see also Roberts v. Colorado State Bd. of Agric., 998 F.2d 824, 832 (10th Cir.
1993) (Title VII is “the most appropriate analogue when defining Title IX’s
substantive standards”) (quoting Mabry v. State Bd. of Community Colleges, 813
F.2d 311, 316 n. 6 (10th Cir. 1987)).
In this case, the district court assessed Mr. Gossett’s Title IX claim under
the three-part framework established for Title VII claims in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). 1 Under this familiar three-step inquiry, a
1
Although defendants agree that Title VII standards apply to proper cases
brought under Title IX, they appear to argue on appeal that Title IX does not
(continued...)
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plaintiff must first establish a prima facie case. The district court held that Mr.
Gossett had done so by demonstrating that he belonged to a protected class, that
he was qualified for his position, and that he lost the position under circumstances
giving rise to an inference of discrimination. Defendants do not challenge this
ruling on appeal.
The creation of a prima facie case gives rise to the presumption that the
challenged action was the result of unlawful discrimination. See Greene v.
Safeway Stores, Inc., 98 F.3d 554, 558 (10th Cir. 1996) (quoting St Mary’s Honor
Ctr. v. Hicks, 509 U.S. 502, 506 (1993)). In order to rebut this presumption, the
defendant bears the burden of articulating a facially nondiscriminatory reason for
the adverse action. See Reeves, 120 S. Ct. at 2106; Marx v. Schnuck Mkts., Inc.,
76 F.3d 324, 327 (10th Cir. 1996). Defendants justified their decision to require
Mr. Gossett to withdraw by relying upon the D grade he received in the Practice
II course taught by instructors Clarke and DeVito-Thomas, pointing to the
Nursing School’s policy requiring a student to withdraw upon receipt of a grade
1
(...continued)
provide a private cause of action to a student like Mr. Gossett who alleges that his
involuntary withdrawal from an academic program was caused by gender
discrimination. Defendants did not make this argument to the district court in
their brief in support of summary judgment. Even if we were to consider this
issue for the first time on appeal, we have found no argument or authority to
support the notion that Title IX, which bars sexual discrimination in any federally
assisted education program, does not apply when a student alleges he was forced
to withdraw from a program due to gender discrimination.
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of D in any class. We agree with the district court that this explanation satisfied
defendants’ burden of production, and that the burden therefore shifted to Mr.
Gossett to establish “‘that the legitimate reasons offered by the defendant[s] were
not [their] true reasons, but were a pretext for discrimination.’” Reeves, 120 S. Ct.
at 2106 (quoting Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253
(1981)).
A plaintiff demonstrates pretext either by showing that a discriminatory
reason more likely motivated the defendant’s decision or that the employer’s
proffered explanation is unworthy of belief. See Marx, 76 F.3d at 327-28.
Evidence sufficient to raise a fact issue on whether a defendant’s proffered
explanation is pretextual may take a variety of forms, including evidence that the
defendant treated the plaintiff differently from others who were similarly situated,
which we have held is especially relevant to a showing of pretext. See E.E.O.C.
v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1195 n.6, 1198-99 (10th Cir.
2000). Although Mr. Gossett attempted to make such a showing below, the
district court rejected his evidence upon concluding either that it was not based on
personal knowledge or that it simply fell short of demonstrating pretext.
We review evidentiary rulings at the summary judgment stage for an abuse
of discretion. See In re Durability Inc., 212 F.3d 551, 555 (10th Cir. 2000). Our
review of the summary judgment record in light of the applicable law convinces
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us that, as discussed below, the district court abused its discretion by refusing to
consider at least two items of evidence that in our view preclude the grant of
summary judgment for defendants.
Mr. Gossett argued in opposition to defendants’ motion for summary
judgment that the Nursing School had a policy of allowing instructors to give
failing students a grade of “Incomplete” and providing those students extra time
in which to improve their grades, and that the School applied this policy in a
sexually discriminatory manner. In support of his contention, he offered
undisputed evidence that the class in which he received a D was made up of
twenty-four students, five of whom were men. Three of the five men failed the
course, while all of the women passed. See App. at 200. In addition, Mr. Gossett
presented the affidavit of Anita Leforce, a female nursing student enrolled during
the Fall 1994 semester in a Practicum I class. She stated that at the end of the
semester she was informed by her instructor that she had not successfully
completed the class and would be given a D on her transcript. Ms. Leforce,
however, was given the opportunity to complete seven additional weeks of work
in the course, and received a C rather that a D. The district court held the
probative value of this affidavit negligible because Ms. Leforce was enrolled in a
different course taught by a different instructor. We disagree.
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It is true that in the context of allegations of discriminatory discipline, this
court has looked to whether the plaintiff and others with whom he seeks to
compare himself worked under the same supervisor. See, e.g., Aramburu v.
Boeing Co., 112 F.3d 1398, 1404, (10th Cir. 1007). When, as here, the plaintiff
contends he is the victim of the discriminatory application of a facility-wide
policy and has other evidence of that policy, however, we have specifically held
that the failure of the plaintiff and affiant to share the same supervisor does not
preclude the consideration of that evidence of disparate treatment. See
Horizon/CMS Healthcare, 220 F.3d at 1198 n.10 (“Defendant, however, has not
demonstrated how the ‘same supervisor’ test is legally relevant to the inquiry of
whether [plaintiff has] been the victim[] of an allegedly discriminatory company-
wide policy. Thus, the fact that [plaintiff] and the affiants did not share the same
supervisor does not preclude consideration of [affiants’] evidence.”) We believe
this holding is equally applicable to Mr. Gossett’s allegation that the Nursing
School routinely discriminated on the basis of gender in applying its school-wide
policy of allowing failing students to receive incomplete grades and extra time to
improve their performance.
Mr. Gossett also presented the affidavit of Deborah Guy, who taught a
variety of classes at the Nursing School from 1993 to 1997 and served as a
member of the Admissions Committee. Her affidavit, which is set out in its
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entirety in the margin, 2 described a pattern of discrimination at the school
2
1. I taught a variety of classes at the Langston University
School of Nursing from 1993 to January 1997 at the Langston
campus, and served as a member of the Admissions Committee.
2. While employed for the University I witnessed routine
mistreatment of the male nursing students at the Langston University
School of Nursing by the University faculty and Dr. Carolyn
Kornegay, the Dean and Director of the School of Nursing.
3. The female faculty is very hard on the male students in the
Nursing program, and while I was employed at the Langston
University School of Nursing, I witnessed only four male students
graduate from the program.
4. I have personal knowledge that Marty Gossett was ridiculed,
belittled, and mocked by the female faculty at Langston University
School of Nursing, during numerous faculty meetings I attended.
5. I have personal knowledge that Kathy Clark, Marty’s
instructor in Process II, verbalized on numerous occasions, in many
different ways, that she did not like Marty Gossett.
6. Dr. Carolyn Kornegay’s treatment of male students at the
Langston University School of Nursing could best be described as
tyrannical and discriminatory.
7. Dr. Carolyn Kornegay acts as if she is untouchable in her
position, and maintains “delusions of grandeur”; and because of her
reputation it has been very difficult to find qualified faculty for the
Nursing School.
8. Dr. Carolyn Kornegay’s position as Dean of the Langston
University School of Nursing, combined with her openly
discriminatory behavior toward male nursing students appears to
affect the way her faculty and employees treat the male students as
well, i.e., it causes a “trickle down” of the disparate and unequal
treatment of males, beginning with Dr. Carolyn Kornegay and
continuing with most of her faculty, and condoned by Dr. Kornegay
when it occurs.
9. I have personal knowledge that “incomplete” grades were
given to students for courses that they were failing at the time.
These students were allowed to remediate these grades in some form.
Decisions as to which students received these incompletes were
(continued...)
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2
(...continued)
arbitrary and capricious in nature.
10. I have personal knowledge of nine students that were given
special favors and consideration in Nursing Process II at the
Langston University School of Nursing. These students were given
“Incompletes” for Process II while they were contemporaneously
failing the course, providing them with the opportunity to remediated
Process II, and advance to their third level without completing their
second level. Process II was the course in which Marty Gossett was
unsuccessful, preventing him from advancing to his third level.
Marty Gossett was denied this opportunity to receive an
“Incomplete.”
11. I have personal knowledge that the female faculty involved
in the readmission process at the Langston University School of
Nursing did not want Marty Gossett to be readmitted to the Nursing
Program, and took both affirmative and passive steps to ensure that
Marty was not allowed back in the school, even though he had a solid
academic record and was qualified as a student.
12. I have personal knowledge that the faculty knew exactly
who the students were that they were evaluating for readmission, and
that there is no anonymity to the readmission process.
13. Certain members of the faculty at both the Langston and
Tulsa campuses are known to be “male-bashers,” and I believe Marty
encountered some of these professors.
14. I feel that there is a definite pattern of discrimination
toward male nursing students at Langston University School of
Nursing, based on their gender, and I have witnessed specific
instances and accounts of this abuse and discriminatory treatment.
15. It is my opinion that Marty Gossett was discriminated
against based upon his gender, and that he was mistreated inside and
outside of the classroom at the Tulsa campus of the Langston
University School of Nursing. It is also my opinion that this
discriminatory treatment was the cause of Marty’s lack of success in
his Process II course, and also the reason he was purposefully
excluded from readmission the Langston University School of
Nursing.
(continued...)
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directed at male students in general and Mr. Gossett in particular. In her affidavit
Ms. Guy offers her opinion, based on her observations and experiences while
teaching at the Nursing School, that Mr. Gossett’s involuntary withdrawal from
the nursing program, and the denial of his readmission, was the result of school-
wide gender discrimination.
The district court rejected Ms. Guy’s affidavit, concluding it failed to
establish that her observations and opinions were based on personal knowledge.
Again we disagree. Under Fed. R. Evid. 701, the testimony of a lay witness “in
the form of opinions or inferences” is admissible if those opinions or inferences
“are (a) rationally based on the perception of the witness and (b) helpful to a clear
understanding of the witness’ testimony or the determination of a fact in issue.”
Courts generally hold admissible under Rule 701 evidence in the form of lay
opinion testimony in discrimination cases when given by a person whose position
with the defendant entity provides the opportunity to personally observe and
experience the defendant’s policies and practices. See, e.g., Hansard v. Pepsi-
Cola Metro. Bottling Co., 865 F.2d 1461, 1466-67 (5th Cir. 1989) (“Courts often
have permitted lay witnesses to express opinions about the motivation or intent of
a particular person if the witness has an adequate opportunity to observe the
2
(...continued)
App., vol. I at pp. 411-13 (emphasis added).
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underlying circumstances.”) (citing cases); cf. United States v. Hoffner, 777 F.2d
1423, 1425 (10th Cir. 1985) (“[C]ourts have been very liberal in admitting
witnesses’ testimony as to another’s state of mind if the witness has had a
sufficient opportunity to observe the accused so as to draw a rational conclusion
about the intent of the accused.”); United States v. Freeman, 514 F.2d 1184, 1191
(10th Cir. 1975) (lay opinion testimony of employee admitted as “a shorthand
rendition of his knowledge of the total situation and the collective facts”).
Such opinion testimony was allowed in Hansard on the issue of age
discrimination even though the witness had no firsthand knowledge of the
termination at issue because the testimony was based on the witness’ own
experience as an employee with the defendant company and his familiarity with
its hiring policy. See id. at 1465. In Lightfoot v. Union Carbide Corp., 110 F.3d
898 (2d Cir. 1997), a long-time employee of the defendant was permitted to
testify that he believed age discrimination had been involved in the plaintiff’s
termination despite the defendant’s objection that the testimony was not based on
personal knowledge. In holding the testimony admissible, the court pointed out
that the witness was “in a position to have acquired personal knowledge of the
facts that formed the basis of his opinion,” and “had established a solid
foundation of his intimate involvement with [defendant’s] operation and his
opinion was thus based on observations about [defendant’s] decisionmaking
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process.” Id. at 911-12. Similarly, in Haun v. Ideal Indus., Inc., 81 F.3d 541,
548 (5th Cir. 1996), an employee of the defendant in an age discrimination suit
was allowed to state his opinion that the defendant was deliberately phasing out
older workers. Id. at 548. Finally, in Samples v. City of Atlanta, 846 F.2d 1328
(11th Cir. 1988), in ruling on a summary judgment motion, the district court
determined that an affidavit by a longtime employee of the defendant giving an
opinion on the defendant’s policies and practices was baseless and conclusory and
refused to consider it. The appellate court reversed, holding that in view of the
affiant’s length of employment, his opinion was based on his personal
observations and was therefore admissible under Rule 701. See id. at 1333-34. 3
In the present case, Ms. Guy’s affidavit demonstrates that her position as an
instructor in the Nursing School and on the Admissions Committee provided her
3
In support of their argument that the district court correctly refused to
consider the affidavits discussed above, defendants cite several cases holding that
statements cannot be considered for summary judgment purposes unless they are
based on personal knowledge. Most of these cases are readily distinguishable
because they do not address the admissibility of lay opinion testimony under Fed.
R. Evid. 701. The few cases that do may be distinguished on the ground that the
lay opinions offered in those cases were not accompanied by the requisite
showing that the witness was in a position to obtain personal knowledge or
firsthand observation of the matters upon which the proffered opinion was based.
See Alexis v. McDonald’s Restaurants of Mass., Inc., 67 F.3d 341, 347 (1st Cir.
1995) (opinion based on observation of ambiguous incident lacked “sufficient
factual undergirding” to be probative of discriminatory intent); Gross v. Burggraf
Const. Co., 53 F.3d 1531, 1544 (10th Cir. 1995) (lay opinion not admissible when
not based on personal knowledge).
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with the opportunity to observe firsthand for several years the School’s policies
and practices with respect to its treatment of male students. Her opinion was a
means of conveying her impression based on what she had herself perceived, and
it was predicated upon concrete facts within her own observation and recollection.
Consequently, her affidavit was admissible under Rule 701, and the district court
abused its discretion in refusing to consider it. 4
Upon consideration of the affidavits of Ms. Leforce and Ms. Guy, and the
other evidence discussed above, we conclude that summary judgment for
defendants on the Title IX claim must be reversed and remanded for further
proceedings.
B. Section 1983
Mr. Gossett also brought a claim under section 1983 asserting that the
alleged gender discrimination denied him his constitutional right to equal
protection. Our holding that he has created a fact issue on gender discrimination
under Title IX requires that we reverse the grant of summary judgment on his
section 1983 claim as well. Given the viability of the section 1983 claim, which
4
Mr. Gossett offered other material in opposition to defendants’ motion for
summary judgment. Because we conclude that the items of evidence discussed
above are a sufficient ground for reversing the grant of summary judgment for
defendants on the Title IX claim, we do not address the district court’s refusal to
consider the other material. We note, however, that if this material is again
offered by Mr. Gossett in further proceedings, the district court may wish to
reassess its admissibility in light of this opinion.
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can proceed against defendants individually, we need not consider defendants’
argument that the Title IX suit cannot proceed against the individual defendants.
Defendants also contend that the individual defendants are entitled to
qualified immunity. Although the parties addressed the issue in the summary
judgment proceedings below, the district court did not rule on the matter per se,
concluding instead that Mr. Gossett had not prevailed on the merits of his claims.
On appeal, appellees rely on the district court’s ruling and argue the qualified
immunity issue on the merits. In view of our decision that fact disputes on the
merits in this case require a remand for further proceedings, we remand the
qualified immunity issue for further proceedings as well. 5
C. Procedural and Substantive Due Process
Mr. Gossett claimed that he was deprived of his right to both procedural
and substantive due process in connection with his involuntary dismissal from the
Nursing School. The district court granted summary judgment to defendants on
these claims, holding that Mr. Gossett received prior notice of the possibility of
dismissal, and that the decision to require his withdrawal was careful and
deliberate, not arbitrary and capricious. As discussed below, we are persuaded
5
A defendant who has lost his right not to stand trial “can ‘reassert [his]
qualified immunity claims at and after trial when the factual disputes have been
resolved.’” Guffey v. Wyatt, 18 F.3d 869, 873 (10th Cir. 1994) (quoting Dixon v.
Richer, 922 F.2d 1456, 1463 (10th Cir. 1991)).
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the record contains a factual dispute as to whether the decision was in fact based
on gender discrimination rather than a careful evaluation of Mr. Gossett’s
academic performance.
As an initial matter, we note that Mr. Gossett had a property interest in his
place in the Nursing School program that is entitled to due process protection
under the Constitution. See Harris v. Blake, 798 F.2d 419, 422 (10th Cir. 1986).
We are mindful of the Supreme Court’s admonition that “the decision whether to
dismiss a student for academic reasons requires an expert evaluation of
cumulative information and is not readily adapted to the procedural tools of
judicial or administrative decisionmaking,” Board of Curators of the Univ. of Mo.
v. Horowitz, 435 U.S. 78, 90 (1978), and that “when judges are asked to review
the substance of a genuinely academic decision, . . . they should show great
respect for the faculty’s professional judgment,” Regents of the Univ of Mich. v.
Ewing, 474 U.S. 214, 225 (1985). As the Court indicated in Ewing, however, the
notion of judicial deference to academic decisions loses force when, as here, the
decisionmaker is “accused of concealing nonacademic or constitutionally
impermissible reasons” for its action. Id.
We turn first to Mr. Gossett’s claim that the manner in which he was
required to involuntarily withdraw from the nursing program denied him
procedural due process. When a school makes an ostensibly academic judgment
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about a student, the procedural requirements of the Due Process Clause are
satisfied if the student is given prior notice of the deficiencies in his academic
performance and if the challenged decision is “careful and deliberate.” Horowitz,
435 U.S. at 85; see also Trotter v. Regents of Univ. of N. Mex., 219 F.3d 1179,
1184-85 (10th Cir. 2000). The district court concluded that the procedural
requirements for an academic decision were met here. We conclude to the
contrary, however, that Mr. Gossett has raised a fact issue as to whether the
decision to require his withdrawal was the result of impermissible gender
discrimination rather than a careful and deliberate evaluation of his academic
ability. 6 Accordingly, we reverse and remand Mr. Gossett’s procedural due
process claim for further proceedings.
Under Supreme Court authority, a plaintiff asserting a substantive due
process claim based on an academic decision must show that the decision was the
product of arbitrary state action rather than a conscientious, careful and deliberate
exercise of professional judgment. See Ewing, 474 U.S. at 224-25; Harris, 798
F.2d at 424. A plaintiff may make such a showing by evidence that the
challenged decision was based on “nonacademic or constitutionally impermissible
reasons,” rather than the product of conscientious and careful deliberation.
6
It is undisputed that Mr. Gossett received constitutionally adequate notice
that his performance was not satisfactory.
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Ewing, 474 U.S. at 225; Harris, 798 F.2d at 424. Mr. Gossett presented evidence
sufficient to create a fact issue on whether the decision to require his withdrawal
from the nursing program was motivated by impermissible gender discrimination
rather than based on an exercise of professional judgment as to his academic
ability. Accordingly, summary judgment was not proper on his substantive due
process claim. 7
The judgment of the district court is REVERSED and REMANDED for
further proceedings in light of this opinion.
7
The district court did not address Mr. Gossett’s claim that illegal
discrimination played a role in his unsuccessful grade contest proceedings and in
his failure to be readmitted. Given our holding reversing and remanding Mr.
Gossett’s claim based on the D grade he received, which in turn necessitated his
grade contest and his requests for readmission, we do not specifically address
these claims. The parties are free to pursue them further on remand.
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Gossett v. Oklahoma Ex Rel. Board of Regents for Langston University
Court: Court of Appeals for the Tenth Circuit
Date filed: 2001-04-10
Citations: 245 F.3d 1172
Copy CitationsCombined Opinion