Escue v. Northern Oklahoma College

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
June 14, 2006
UNITED STATES CO URT O F APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

CA LLIE ESCUE,

Plaintiff-Appellant, Nos. 04-6270, 04-6310
v.
NORTHERN OKLAHOM A
COLLEGE, a political subdivision
of the State of Oklahoma; and
RICHARD FINTON, in his
individual and official capacities,

Defendants-Appellees.

A PPE AL S FR OM T HE UNITED STATES DISTRICT COURT
FOR T HE W E ST ERN DISTRICT OF OKLAHOM A
(D.C. No. 03-CV-134-HE)

N. Kay Bridger-Riley, Bridger-Riley Bailey & A ssociates, P.C., Tulsa, Oklahoma
for Plaintiff-Appellant Callie Escue.

Gregory Thomas M etcalf, Assistant Attorney General, (Stefan K. Doughty,
Assistant Attorney General, on the brief) Oklahoma City, Oklahoma, for
Defendant-Appellee Northern Oklahoma College, and for Defendant-Appellee
Richard Finton in his official capacity.

Kenneth R . Coe, Oklahoma City, Oklahoma, for Defendant-Appellee Richard
Finton in his individual capacity.

Before H EN RY, A ND ER SO N, and O’BRIEN, Circuit Judges.
H ENRY, Circuit Judge.

Callie Escue, formerly a student at Northern Oklahoma College (N OC),

alleges that Richard Finton, her professor in spring 2002, sexually harassed her,

and that NOC failed to supervise and investigate adequately M r. Finton in this,

and other prior incidents. The district court granted N OC’s motion for summary

judgment, and a jury found in favor of M r. Finton. Here, M s. Escue appeals the

district court’s grant of summary judgment to NOC. She also appeals the denial of

her motions for judgment as a matter of law and a new trial with respect to her

claims against M r. Finton. Because we hold that (1) NOC did not have prior

notice that M r. Finton presented a substantial risk to its students, (2) its response

to M s. Escue’s harassment was not clearly unreasonable, and (3) the jury’s verdict

in favor of M r. Finton was not against the weight of the evidence, we affirm the

district court.

I. BACKGROUND

In the spring semester of 2002, M s. Escue was enrolled in two classes taught

by M r. Finton, a tenured faculty member, at NOC. M s. Escue contends that during

this time, M r. Finton touched her inappropriately without her consent on multiple

occasions and made numerous sexual comments, some about her in front of her

peers, and others to her while they were alone. She makes three claims against

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M r. Finton with respect to these allegations: (1) that his conduct violated her due

process and equal protection rights and is actionable under 42 U.S.C. § 1983; (2)

that he assaulted and battered her in violation of state law; and (3) that he

intentionally caused her emotional distress in violation of state law. M r. Finton

admitted to some of the allegations, but contested others. Because of disputes

over material facts, the district court denied M r. Finton’s motion for sum mary

judgment.

At trial, M r. Finton admitted to having made comments about the size of

M s. Escue’s breasts on three or four separate occasions, but denied a number of

M s. Escue’s other allegations: he testified that he did not look down her pants or

her blouse; that he did not tell her about any sexual dreams; that he did not slap

her buttocks; that he did not tell her sexual jokes; that he did not tell her that he

wanted to fondle her breasts; and that he did not tell her he would use a condom if

they had sex. He also admitted to giving M s. Escue a “sternum adjustment” w hile

lifting up her shirt, in his office with the door locked, but testified that he did not

touch her breasts during the adjustment incident, and that she consented to

whatever contact occurred. Aplt’s App. vol. VI, at 1171 (testifying that a

“sternum adjustment” “can realign your ribs on the front side of the sternum” by

applying pressure to the sternum and the shoulders).

Thomas M eyer, M s. Escue’s debate partner and close friend, testified during

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trial about incidents that he had witnessed between M s. Escue and M r. Finton: he

had heard M r. Finton make a number of comments about M s. Escue and her

breasts, and had also seen M r. Finton pull her shirt so that he could look down her

blouse. M r. M eyer also testified that M r. Finton sometimes had given massages

and adjustments to other students, including himself, and that M s. Escue twice had

gone to M r. Finton’s office to give M r. Finton a back massage. M r. M eyer told the

jury that he had seen M s. Escue show tattoos to M r. Finton that required her to lift

part of her clothing. He testified that, after hearing about the sexual harassment

claims, he had been “furious” and agreed that he had told a friend that he believed

“whatever happened was as much Callie’s fault as Finton’s.” Id. vol. V, at 1025.

M s. Escue also testified during the jury trial. She described instances of

inappropriate contact, and maintained that during the sternum adjustment, M r.

Finton had fondled her breasts. Id. vol. VI, at 1265 (M r. Finton pulling down her

shirt), 1267 (describing “jokes” and comments made by M r. Finton), 1274 (M r.

Finton looking down her pants and moaning), 1277 (M r. Finton fondling her

breasts in his office during the adjustment). During her testimony, she admitted

that she had sent a V alentine’s D ay card to M r. Finton, that she did not object to

the sternum adjustment and had voluntarily laid on the floor of his office, and that

after the sternum-adjustment incident in his office, she had remained in his office

and smoked a cigarette with him.

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 Shortly after the sternum-adjustment incident in M r. Finton’s locked office,

M s. Escue’s father became involved and together, M s. Escue and her father

contacted NOC’s president, Dr. Joe Kinzer. The next day, they met in person with

Dr. Kinzer to discuss the allegations and to express M s. Escue’s concern that her

allegations remain confidential. Her concerns about confidentiality were founded

because another student had already told M r. Finton that M s. Escue had planned to

inform NOC officials about her allegations. That night, after meeting with Dr.

Kinzer, M s. Escue decided to stay at her parents’ home because M r. Finton had

gone to her dormitory to try to find her; she had not been there and may have been

in the meeting during his visit. NOC officials met with M r. Finton the day after

meeting with M s. Escue and her father, and informed him of the allegations. After

this point, M s. Escue and M r. Finton had no further contact.

NOC decided to transfer M s. Escue out of one of M r. Finton’s classes,

permitted her to finish the other class as of M arch with her then-current grade, and

began an investigation into her allegations. After its investigation, NOC decided

that it would terminate its relationship with M r. Finton at the end of the spring

semester; although he had planned to retire at the end of the spring or summer

semester, he had been slated to teach a class in the summer, and possibly later, on

an adjunct basis.

Prior to the alleged harassment in spring 2002, NOC had been aware of

5
other sexual incidents involving M r. Finton and students. In 1993, two students

had lodged sexual harassment complaints against M r. Finton. One student

reported that he had called her “butch” on multiple occasions and another alleged

that he had slapped her buttocks once while she boarded a bus. In response to

these two students’ allegations, Dr. Kinzer verbally reprimanded M r. Finton and

referred the matters to a dean at NOC. M r. Finton admitted to calling one student

“butch” and promised to stop, but he stated that he had only touched the other

student by accident with his elbow. No one at NOC placed any record of the

complaints or reprimand in M r. Finton’s personnel file and no action was taken

against M r. Finton as a result of these allegations.

Then, in 1995 or 1996, Dr. Kinzer received an anonymous letter that

reported M r. Finton had dated an unnamed student. W hen confronted, M r. Finton

told Dr. Kinzer that he had dated a student in 1991-1992. M r. Finton was again

verbally reprimanded, but Dr. Kinzer did not record any information about this in

M r. Finton’s personnel file. Later, during his deposition, M r. Finton explained

that the person referenced in this letter had been an older, non-traditional student

who had not been in any of M r. Finton’s classes. During his deposition, M r.

Finton also admitted to a second relationship with another older, non-traditional

student who had been in one of his classes. Both Dr. Kinzer and M r. Finton

testified during their depositions that NOC had no knowledge of this second

6
relationship.

Based on these prior incidents and what M s. Escue alleged was an

inadequate investigation into her allegations, she made two claims against NOC:

(1) that it negligently supervised M r. Finton in violation of state law, and (2) that

it violated Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681-

1688, by failing to remedy an abusive and/or hostile educational environment.

After receiving cross-motions for summary judgment from M s. Escue and NOC,

the district court granted summary judgment to NOC with respect to both claims.

In its order granting NOC summary judgment, the court stated that the evidence

was “somewhat confusing” as to which student the letter referenced, but “the

court’s decision on NOC’s liability would not change even if Dr. Kinzer had

understood the letter pertained to a relationship between Finton and a student other

than [the older, non-traditional student who had not been in any of M r. Finton’s

classes].” A plt’s App. vol. IV, at 821 n.9 (Dist. Ct. Order, filed June 30, 2004).

II. D ISC USSIO N

In this consolidated appeal, M s. Escue challenges the district court’s grant

of summary judgment to NOC. She also challenges the district court’s denial of

her motion for judgment as a matter of law and the denial of her motion for a new

trial with respect to her claims against M r. Finton, contending the verdict was not

supported by the evidence. W e first consider M s. Escue’s arguments as they relate

7
to NOC.

A. A rgum ents Pertaining to D efendant N OC

The district court held that there were no issues of material fact in dispute

with respect to M s. Escue’s claims against N OC, that NOC did not violate Title

IX, and that NOC did not negligently supervise M r. Finton. 1 In her brief on

appeal, M s. Escue does not contend that there are any issues of material fact that

would preclude summary judgment; rather, she argues that the district court

incorrectly applied the law in granting NOC summary judgment.

W e review the district court’s grant of summary judgment de novo. Sports

Unlimited v. Lankford Enters., 275 F.3d 996, 999 (10th Cir. 2002). Summary

judgment is appropriate only where “there is no genuine issue as to any material

fact and . . . the moving party is entitled to a judgment as a matter of law.” F ED .

R. C IV . P. 56(c). W e must view the evidence and all inferences that might be

1
The district court also noted that, in her response to NOC’s summary judgment
motion, M s. Escue explained that “she did not intend to sue NOC under § 1983 or
assert assault, battery, or intentional infliction of emotional distress claims against
the college. Those claims against NOC are, therefore, dismissed.” Aplt’s App.
vol. IV, at 819 n.2; see also id. vol. III, at 469 (Pl.’s Resp. to M ot. for Summ. J.,
filed Apr. 29, 2004). In her brief on appeal, M s. Escue states that “[t]he District
Court erred in granting Northern O klahoma College’s M otion for Summary
Judgment on M s. Escue’s claims under . . . § 1983, [and] state law claims for
assault, battery, intentional infliction of emotional distress . . . .” Aplt’s Br. at 1.
Because M s. Escue expressly disclaimed her intent to sue N OC under these
theories, she cannot renew these abandoned claims on appeal, especially given that
M s. Escue makes no argument that dismissal of these claims pursuant to Federal
Rule of Civil Procedure 41(b) w as improper.

8
reasonably drawn from it in the light most favorable to M s. Escue. See Sports

Unlimited, 275 F.3d at 999.

1. Title IX Claim

M s. Escue argues that N O C is liable under T itle IX for M r. Finton’s

alleged sexual harassm ent. Title IX provides that “[n]o person in the U nited

States shall, on the basis of sex, . . . be subjected to discrim ination under any

education program or activity receiving Federal assistance.” 20 U .S.C . §

1681(a). Pursuant to its pow er under section five of the Fourteenth A m endm ent,

“C ongress abrogated the States’ E leventh A m endm ent im m unity under T itle IX ,”

Franklin v. G w innett C ounty Pub. Schs., 503 U .S. 60, 72 (1992), and therefore a

school such as N O C m ay properly be sued by its students. See also 42 U .S.C . §

2000d-7(a)(1) (“A State shall not be im m une under the Eleventh A m endment of

the Constitution of the U nited States from suit in Federal court for a violation of

. . . title IX of the Education A m endm ents of 1972.”).

Sexual harassm ent is a form of discrim ination on the basis of sex and is

actionable under T itle IX . Franklin, 503 U .S. at 75. N O C , how ever, is not

vicariously liable to its students for all sexual harassment caused by teachers,

and the Supreme C ourt has held that, under Title IX , a student m ay hold a school

liable “only for its ow n m isconduct.” Davis v. M onroe County Bd. of Educ., 526

U.S. 629, 640 (1999).

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 As w e have explained, this sort of supervisory liability is imposed: (1) “only

if the [school] remains deliberately indifferent to acts of harassment of which it

has actual knowledge,” M urrell v. Sch. Dist. No. 1, Denver, Colo., 186 F.3d 1238,

1246 (10th Cir. 1999), (2) the harassment was reported to an “appropriate person .

. . with the authority to take corrective action to end the discrimination,” Gebser v.

Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998), and (3) the harassment

was “so severe, pervasive and objectively offensive that it . . . deprived the victim

of access to the educational benefits or opportunities provided by the school,”

M urrell, 186 F.3d at 1246. Here, it is not contested that M s. Escue reported the

harassment to an appropriate person, Dr. K inzer, satisfying the second element.

See Aplt’s Br. at 10-11.

M s. E scue presents tw o different theories of liability to satisfy elem ents

one and three. First, she asserts that N O C had actual know ledge that M r. Finton

sexually harassed students before M s. Escue was a student, to w hich it w as

deliberately indifferent. Thus, M s. Escue argues that this deliberate indifference

to know n acts of harassm ent caused M s. Escue to be subjected to harassm ent by

M r. Finton and deprived her of educational opportunities. H er second theory of

liability is that, after becom ing aw are of M s. Escue’s allegations against M r.

Finton, N O C w as deliberately indifferent to her com plaints of harassment, also

causing her to be deprived of educational opportunities.

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 B elow , w e exam ine each theory in turn. B ecause w e conclude (1) that the

prior incidents w ere not sufficient to provide N O C w ith actual know ledge that

employing M r. Finton put its student at substantial risk of being harassed, and

(2) that N O C w as not deliberately indifferent to M s. E scue’s allegations, w e hold

that the district court properly granted sum m ary judgm ent to N O C .

a. Actual Knowledge of Prior Acts of Harassment

M s. Escue first argues that the district court erred by deciding that “[t]he

information NOC/Kinzer possessed cannot be equated with the ‘actual knowledge’

required to impose liability under Title IX.” Aplt’s App. vol. IV, at 824. The

district court reasoned that NOC did not have this knowledge because “[t]he

incidents of which it was aware were too dissimilar, too infrequent and/or too

distant in time . . . to impose liability on NOC for its failure to take action” before

M s. Escue’s claims arose. Id. For the reasons explained below, we agree with the

district court’s analysis of this issue.

In Gebser, the Supreme Court explained that to make a Title IX claim

against a school for sexual harassment, the plaintiff must show an appropriate

person, (here, Dr. Kinzer), had “actual knowledge of discrimination in the

recipient’s [N OC ’s] program s.” 524 U.S. at 290 (emphasis added). By noting

that actual knowledge of discrimination in the recipient’s program is sufficient,

the Court implicitly decided that harassment of persons other than the plaintiff

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may provide the school with the requisite notice to impose liability under Title IX .

See id. Thus, under Gebser, if Dr. Kinzer or another “appropriate person” has

actual knowledge of discrimination in NOC’s programs, this is sufficient to satisfy

the “actual knowledge” prong of Title IX liability. See id.

Lower courts differ on whether notice sufficient to trigger liability may

consist of prior complaints or must consist of notice regarding current harassment

in the recipient’s programs. Com pare Johnson v. Galen Health Insts., Inc., 267 F.

Supp. 2d 679, 688 (W .D. Ky. 2003) (collecting cases and explaining that “the

Gebser notice standard does not require that the offending instructor actually

comm it previous acts of harassment against the plaintiff-student and that the

plaintiff-student complain before the institution may be held liable for the

instructor’s subsequent repeated misconduct under Title IX. Actual knowledge of

intentional discrimination and actual knowledge of the actual plaintiff's

experiences are two different things.”), with Baynard v. M alone, 268 F.3d 228,

238 (4th Cir. 2001) (requiring “a showing that school district officials possessed

actual knowledge of the discriminatory conduct in question”). Even under the

m ore permissive stance that allegations of prior conduct suffice to impose

liability, w e conclude M s. Escue has not m et this burden.

The district court reasoned that the prior instances were “too dissimilar, too

infrequent, and/or too distant in time” to provide the school with actual knowledge

12
of sexual harassment in its programs. Aplt’s App. vol. IV, at 824. In this case, w e

agree with this analysis.

The Supreme Court in Gebser noted that one complaint of a teacher making

inappropriate comments “was plainly insufficient to alert the principal to the

possibility that [the teacher] was involved in a sexual relationship with a student.”

524 U.S. at 291. Although Gebser makes clear that “actual notice requires more

than a simple report of inappropriate conduct by a teacher . . . the actual notice

standard does not set the bar so high that a school district is not put on notice until

it receives a clearly credible report of sexual abuse from the plaintiff-student.”

Doe v. Sch. Admin. Dist. No. 19, 66 F. Supp. 2d 57, 62 (D. M e. 1999). Generally,

the district courts that have examined the issue have required that the school have

“actual knowledge of a substantial risk of abuse to students based on prior

complaints by other students.” Doe A. v. Green, 298 F. Supp. 2d 1025, 1033 (D.

Nev. 2004) (emphasis added) (citing Johnson, 267 F. Supp. 2d at 688 (finding

same)). Prior instances need not be “clearly credible [because] . . . [a]t some

point . . . a supervisory school official know s . . . that a school employee is a

substantial risk to sexually abuse children.” Gordon v. Ottumwa Cmty. Sch. Dist.,

115 F. Supp. 2d 1077, 1082 (S.D. Iowa 2000) (internal quotation marks omitted).

The instances of dating two non-traditional students nearly his own age do

not provide NOC with any knowledge that M r. Finton posed a substantial risk of

13
sexual harassment to NOC’s students: even though one of these relationships may

have been improper (the district court noted that one of the dating relationships

did not even violate school policy, even though it was not condoned, Aplt’s App.

vol. IV, at 821), there is no insinuation anywhere in the record that these

relationships were non-consensual.

The other two instances where M r. Finton received complaints concerning

inappropriate behavior of a sexual nature occurred nearly a decade before M s.

Escue’s complaints, and involved significantly different behavior – a single

incident of inappropriate touching and a series of inappropriate name-calling.

W hen confronted, M r. Finton had told NOC that the touching was an accident and

had acknowledged the name-calling should stop. These two episodes do not

provide NOC with actual know ledge that M r. Finton presented a “substantial risk

of abuse” to other students – indeed, one of the incidents involved no physical

contact whatsoever, the other was an isolated incident, and neither involved

anywhere near the degree of overt and pervasive harassment that M s. Escue

alleges constituted a hostile educational environment. See Gesner, 524 U.S. at

291; Sim pson v. Univ. of Colo., 372 F. Supp. 2d 1229, 1235-36 (D. Colo. 2005)

(holding that “the risk must remain focused . . . [t]he more a risk becomes

generalized, the more that risk is likely to fall outside of the narrowly

circumscribed scope of Title IX liability”); Gordon, 115 F. Supp. 2d at 1082

14
(stating that “actual notice ‘requires more than a simple report of inappropriate

conduct’ on the part of a school employee”) (quoting Sch. Adm in. D ist. N o. 19, 66

F. Supp. 2d at 62). Especially given that nearly ten years passed w ithout

additional allegations, N O C sim ply did not have the requisite know ledge based

on prior complaints to believe that M r. Finton presented a substantial risk of

abuse or harassm ent to students.

b. Deliberate Indifference

W e now turn to M s. Escue’s second argument: that once she informed NOC

of her allegations against M r. Finton, its response was minimal and insufficient,

and therefore NOC was deliberately indifferent to known acts of harassment.

NOC does not dispute that, once M s. Escue made her allegations about M r. Finton,

it had sufficient “actual knowledge” of sexual harassment under Title IX. Rather,

NOC responds that it was not deliberately indifferent to M s. Escue’s allegations

because its actions w ere not “clearly unreasonable in light of the known

circumstances” and because its response to the harassment did not “cause [M s.

Escue] to undergo harassment or make [her] vulnerable to it.” Davis, 526 U.S. at

643, 648. The district court held that in light of the “high standard” required for

imposing liability under Title IX, NOC’s response to M s. Escue’s allegations was

not clearly unreasonable. Aplt’s App. vol. IV, at 825. W e agree.

Although certainly a “minimalist response is not within the contemplation

15
of a reasonable response,” Vance v. Spencer County Pub. Sch. Dist., 231 F.3d 253,

260 (6th Cir. 2000), N OC’s response was not minimal. After meeting with M s.

Escue and her father and learning of her allegations against M r. Finton, NOC

permitted M s. Escue to transfer out of M r. Finton’s class and into one that was

substantially similar. It allowed her to stop taking his debate class and take her

grade as of that time, mid-way through the semester. NOC also confronted M r.

Finton with the allegations, asked two other students about the allegations, and

determined that the school’s relationship with him would permanently end after

the semester.

Thus, NOC argues that it took “steps to prevent further and future contact

between Appellant and Finton.” Aple. NOC’s Br. at 17. M s. Escue argues that

NOC should have removed M r. Finton from the classroom, and specifically

instructed him to keep aw ay from her. M oreover, M s. Finton alleges that NOC’s

investigation into her allegations w as not significant until she filed this lawsuit.

Although NOC might have taken more aggressive action against M r. Finton,

it does not follow that the college was deliberately indifferent. School

administrators need not “engage in particular disciplinary action,” Davis, 526 U.S.

at 648, and “[v]ictims do not have a right to seek particular remedial demands,”

Theno v. Tonganoxie Unified Sch. Dist. No. 464, 377 F. Supp. 2d 952, 965 (D.

Kan. 2005). M oreover, NOC had no “know ledge that its remedial action [was]

16
inadequate and ineffective.” Vance, 231 F.3d at 261. NOC removed M s. Escue

from the harassing environment and immediately questioned two of her peers and

M r. Finton about the charges. It also determined to prevent M r. Finton from

teaching any other classes after the semester ended. W e conclude that these

actions constitute “timely and reasonable measures to end the harassment.” Wills

v. Brown Univ., 184 F.3d 20, 25 (1st Cir. 1999). Because this response was not

“clearly unreasonable in light of the known circumstances,” Davis, 526 U.S. at

643, NOC was not deliberately indifferent to M s. Escue’s harassment, as a matter

of law.

Significantly, we note that M s. Escue does not allege that further sexual

harassment occurred as a result of NOC’s deliberate indifference. The Supreme

Court has stated that “the deliberate indifference must, at a minimum, cause

students to undergo harassment or make them liable or vulnerable to it.” Id. at

644-45 (internal quotation m arks om itted). For instance, in Theno, a student was

subjected to years of harassment by his peers. A lthough the school responded to

discrete incidents, it issued only warnings to the perpetrators and sometimes

required them to undergo counseling. D espite these measures, the student w as

still harassed. The Theno court found that sum m ary judgm ent was inappropriate

because “a reasonable jury certainly could conclude that at som e point during the

four-year period of harassm ent the school district’s standard and ineffective

17
response to the know n harassm ent becam e clearly unreasonable.” Theno, 377 F.

Supp. 2d at 965.

M s. Escue’s arguments do not present a similar situation. At no point does

she allege that NOC’s response to her allegations was ineffective such that she

was further harassed. Although M r. Finton attempted to contact her once the day

that she reported her allegations to Dr. Kinzer, he was unsuccessful and this

incident did not lead to sexual harassment. Summary judgment on these facts is

therefore appropriate, as M s. Escue has not shown that NOC’s response was

clearly unreasonable nor has she shown that it led to further sexual harassment.

See Davis, 526 U.S. at 649 (“In an appropriate case, there is no reason why courts, on a

motion to dismiss, for summary judgment, or for a directed verdict, could not identify a

response as not ‘clearly unreasonable’ as a matter of law.”).

2. Negligent Supervision

The district court also granted NOC summary judgment on Ms. Escue’s claim that

NOC is liable for negligent supervision. In Oklahoma, an employer may be held liable

for negligent supervision “if – at the critical time of the tortious incident – , the employer

had reason to believe that the person would create an undue risk of harm to others.

Employers are held liable for their prior knowledge of the servant’s propensity to commit

the very harm for which damages are sought.” New Hampshire v. Presbyterian Church

(U.S.A.), 998 P.2d 592, 600 (Okla. 1999). We substantially agree with the district court’s

18
reasoning that this element of the Oklahoma tort of negligent supervision largely overlaps

with the “actual knowledge” prong of Title IX liability. See Aplt’s App. vol. IV, at 827.

Therefore, for the same reasons that NOC did not have sufficient knowledge, based on the

prior incidents, to believe that Mr. Finton presented a substantial risk of abuse to students,

“[t]he information the school possessed about Finton’s behavior did not apprise NOC of

Finton’s ‘propensity to commit the very harm’ for which the plaintiff now sues the

college.” Id. (quoting Presbyterian Church (U.S.A.), 998 P.2d at 600).

B. Arguments Pertaining to Defendant Finton

Pursuant to Rules 50 and 59 of the Federal Rules of Civil Procedure, Ms. Escue

asked the district court to grant a new trial, or in the alternative, grant judgment as a

matter of law as to each of her three claims against Mr. Finton: (1) deprivation of

constitutional rights, actionable under § 1983; (2) assault and battery under state law; and

(3) intentional infliction of emotional distress under state law. We review de novo the

district court’s denial of Ms. Escue’s motion for judgment as a matter of law under Rule

50 of the Federal Rules of Civil Procedure. Loughridge v. Chiles Power Supply Co., 431

F.3d 1268, 1280 (10th Cir. 2005). We make all reasonable inferences in favor of the non-

moving party. Id. “Judgment as a matter of law is appropriate only if the evidence points

but one way and is susceptible to no reasonable inferences which may support the

nonmoving party’s position.” Id. (internal quotation marks omitted).

W e review the district court’s denial of M s. Escue’s motion for a new trial

19
for abuse of discretion, viewing all the evidence in the light most favorable to the

prevailing party. Snyder v. City of M oab, 354 F.3d 1179, 1187-88 (10th Cir.

2003). “[A ] motion for a new trial on the grounds that the jury verdict is against

the weight of the evidence normally involves a review of the facts presented at

trial, and thus involves the discretion of the trial court.” Black v. Heib’s Enters.,

805 F.2d 360, 363 (10th Cir. 1986). Thus, even if we do not necessarily agree

with the jury’s verdict, it must be upheld unless it is “clearly, decidedly or

overwhelmingly against the weight of the evidence.” Id.

1. Section 1983 Claim

The district court instructed the jury that, to find in favor of M s. Escue on

this claim, it had to find the following to be true: (1) M r. Finton had deprived her

of a constitutional right, (2) he acted under color of state law, and (3) his actions

were the proximate cause of the injuries and damages she sustained. Aplt’s App.

vol. IV, at 864; see 42 U.S.C. § 1983. The jury was instructed that, with regard to

the second prong of that test, M r. Finton had acted under color of state law. Aplt’s

App. vol. IV, at 866.

The district court further instructed that, with regard to the first prong of

that test, M r. Finton violated M s. Escue’s constitutional right to be free from sex

discrimination under the equal protection clause of the Fourteenth Amendment if

the jury found that: (1) M r. Finton’s conduct subjected her to sex discrimination,

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(2) the conduct was unwelcome, and (3) the conduct was sufficiently severe or

pervasive as to interfere unreasonably with her school performance and create a

hostile or abusive educational environment. Id. at 865; see also Lipset v. Univ. of

P.R., 864 F.2d 881, 898 (1st Cir. 1988) (explaining that, under the equal protection

clause, a plaintiff makes a “prima facie case of hostile environment harassment”

by show ing that “he or she was subjected to unw elcome sexual advances so

‘severe or pervasive’ that it altered his or her working or educational

environment”) (quoting M eritor Sav. Bank v. Vinson, 477 U.S. 57, 67 (1986)).

Therefore, if the jury determined that the conduct was not unw elcome or that M s.

Escue consented to the contact, it could not have found in favor of her on this

claim.

The Supreme Court has observed that “the question whether particular

conduct was indeed unwelcome presents difficult problems of proof and turns

largely on credibility determinations committed to the trier of fact.” M eritor Sav.

Bank, 477 U.S. at 68 (examining a sexual harassment suit brought under Title

VII). Although a jury could have found in M s. Escue’s favor on this claim had it

favored her testimony about the incidents, if a jury did not credit her version of

events, there was sufficient evidence for it to find that M r. Finton’s conduct was

not unwelcome.

M s. Escue testified that she did not welcome the conduct, and M r. M eyer

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testified that the look on her face during the incidents that he witnessed showed

that M r. Finton’s actions were unwelcome. However, the jury need not have

found this testimony credible. M oreover, the jury could have found that some of

M s. Escue’s testimony tended to show that M r. Finton’s conduct was not

unwelcome: M s. Escue admitted that she never verbally objected to any of the

conduct, that she explicitly consented to the sternum adjustment and voluntarily

laid on M r. Finton’s office floor, and that she sent M r. Finton a Valentine’s Day

card. M r. M eyer’s testimony that M s. Escue went to M r. Finton’s office to give

M r. Finton back massages and showed him tattoos that were under her clothing

also could have permitted the jury to draw the inference that M r. Finton’s conduct

was not unwelcome. Therefore, view ing the evidence in the light most favorable

to M r. Finton, the jury’s verdict on M s. Escue’s § 1983 claim was not against the

weight of the evidence, and the district court correctly denied M s. Escue’s motions

for a directed verdict and new trial.

2. Assault and Battery Claim

The district court instructed the jury that even if it found that an assault or

battery occurred,“[d]efendant is not liable to Plaintiff on her claim of assault or

her battery claim if he proves his affirmative defense of consent.” Aplt’s App.

vol. IV, at 870; see also Taylor v. Hesser, 991 P.2d 35, 39 (O kla. Civ. App. 1998).

M r. Finton could have proved consent by showing that M s. Escue led him

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reasonably to believe that she consented to his contact, and that the contact was

the same or substantially similar to the contact to which she consented. Aplt’s

App. vol. IV, at 870. M r. Finton argues that the jury had sufficient evidence to

find that he proved his affirmative defense of consent.

Under Oklahoma law, consent does not always need to be verbal; it can be

inferred from a person’s actions. “‘If words or conduct are reasonably understood

by another to be intended as consent, they constitute apparent consent and are as

effective as consent in fact.’” Dubbs v. Head Start, Inc., 336 F.3d 1194, 1219

(10th Cir. 2003) (quoting R ESTATEMENT (S ECOND ) T ORTS § 892(2)) (applying

Oklahoma law). Similarly, the Third Circuit has explained that “[e]xpress consent

may be given by words or affirmative conduct and implied consent may be

manifested when a person takes no action, indicating an apparent willingness for

the conduct to occur.” Barnes v. Am. Tobacco Co., 161 F.3d 127, 148 (3d Cir.

1998) (citing R ESTATEMENT (S ECOND ) T ORTS § 892 cmt. b & c).

Viewing the evidence in the light most favorable to M r. Finton, the jury

verdict is not against the w eight of the evidence. Even if M r. Finton’s own

admissions during trial showed that he committed the prima facie elements of both

assault and battery, as M s. Escue contends, the jury could have found that M s.

Escue led M r. Finton to believe that she consented to his contact, or contact that

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was substantially similar. As explained above with respect to her § 1983 claim,

M s. Escue admitted that she never objected to M r. Finton’s conduct, she

voluntarily went to his office on a number of occasions, gave him back massages,

gave him a Valentine’s Day card, consented to the sternum adjustment, and

remained in his office after the sternum-adjustment incident. M r. Finton

maintained at trial that, during the sternum adjustment, he did not, in fact, touch

M s. Escue’s breasts. The jury was not required to credit M s. Escue’s testimony

that she did not consent to or welcome M r. Finton’s conduct because “[i]t is the

jury’s exclusive province to assess the credibility of witnesses and determine the

weight to be given to their testimony.” Lam on v. City of Shawnee, 972 F.2d 1145,

1159 (10th Cir. 1992). From M s. Escue’s admissions, coupled w ith M r. M eyers’s

and M r. Finton’s testimony, a reasonable jury had sufficient evidence to find that

she implicitly consented to the conduct.

3. Intentional Infliction of Emotional Distress Claim

As the district court instructed, for the jury to find in favor of M s. Escue on

her intentional infliction of emotional distress claim, she had to prove that: (1) M r.

Finton’s conduct was so extreme and outrageous that it went beyond all possible

bounds of decency; (2) the conduct would be considered atrocious and intolerable

in a civilized society; and (3) M r. Finton intentionally or recklessly caused severe

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emotional distress to M s. Escue beyond that which a reasonable person could be

expected to endure. Aplt’s App. vol. IV, at 868; see also Gaylord Entm’t Co. v.

Thom pson, 958 P.2d 128, 149 (Okla. 1998) (characterizing tort of intentional

infliction of emotional distress as “narrow” and explaining that “[c]onduct which,

though unreasonable, is neither ‘beyond all possible bounds of decency’ in the

setting in which it occurred, nor is one that can be ‘regarded as utterly intolerable

in a civilized community’ falls short of having actionable quality”) (quoting

R ESTATEMENT (S ECOND ) OF T ORTS § 46).

As explained above, a reasonable jury could have concluded that M s. Escue

consented to the events that occurred. Given this, it follows that the same jury

would likely not have found that M r. Finton’s conduct was extreme and

outrageous, or “beyond all possible bounds of decency.” Gaylord Entm’t Co., 958

P.2d at 149 (quotation marks omitted).

Even if M r. Finton’s conduct had met this high standard, the jury could have

reasonably concluded that the emotional distress M s. Escue suffered was not

severe enough to impose liability on M r. Finton. In Daemi v. Church’s Fried

Chicken, we held that there was insufficient evidence to establish that the plaintiff

suffered severe emotional distress, where the plaintiff alleged that he was sick to

his stomach, nervous, insecure, unrestful, no longer acted like himself, and that he

had to discuss the complained-of conduct with a therapist he was consulting for

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different problems. 931 F.2d 1379, 1389 (10th Cir. 1991) (applying Oklahoma

law). W e explained that to prevent a claim of intentional infliction of emotional

distress “from becoming a panacea for all of life’s ills, . . . distress [sufficient to

support the claim] is often accompanied by shock, illness, or other bodily harm,

but bodily harm is not a prerequisite.” Id. (internal quotation marks omitted).

Here, M s. Escue complains that, as a result of M r. Finton’s conduct, she

suffered from fear, could not sleep, had nightmares, suffered from depression, and

was subjected to ridicule and humiliation by her peers. The jury could have

reasonably found that M s. Escue’s testimony regarding these effects was not

credible, as M s. Escue did not proffer any evidence besides her own testimony to

prove that she suffered emotional distress. M oreover, her allegations are quite

similar to those that we held “legally insufficient” in Daemi – inability to sleep,

personality changes, physical manifestations of stress (in Daemi through stomach

problems, and for M s. Escue, depression), nervousness, and fear. See id.

Therefore, the jury did not act against the weight of the evidence by finding that

M s. Escue had not met her burden of proof with respect to the intentional

infliction of emotional distress claim.

III. C ON CLU SIO N

For the reasons explained above, we AFFIRM the district court’s grant of

summary judgment to N OC. W e also AFFIRM the district court’s denial of M s.

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Escue’s motions for a new trial and judgment as a matter of law with respect to her

claims against M r. Finton.

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