The 4th U.S. Circuit Court of Appeals has decided to rehear the appeal, en banc, of Melissa Jennings, who sued University of North Carolina Women’s Soccer Coach Anson Dorrance more than eight years ago for sexual harassment.
The litigation seemed all but dead earlier this year when two members of a 3-judge panel had denied Jennings’ appeal of a trial court’s decision to grant summary judgment to UNC.
In that decision, the panel noted that Dorrance frequently participated in discussions about the sex life of his players.
It described one situation, early on, where a “player informed the team that she had had sex with one man, climbed out of his window, and then climbed into the window of another man’s apartment to have sex with him. Dorrance was present and asked the player if she knew her sexual partners’ names or whether she took tickets. He also referred to this player’s sexual partner as the “f*** of the week.”
Jennings was offended by Dorrance’ curiosity and persistence in discussions with the team, and in the fall of 1996, she met with Susan Ehringhaus, then Assistant to the Chancellor and Senior University Counsel. She complained to Ehringhaus about a number of things relating to Dorrance including:
“(1) Dorrance failing to come visit Jennings in the hospital when she got sick during the fall of her freshman year;
“(2) Dorrance failing to tell the team that Jennings was in the hospital with an illness during the fall of her freshman year as an explanation for why Jennings missed a game;
“(3) Dorrance directing Jennings to buy Gatorade for the team and the team’s opponent due to a disruption of water supply in Chapel Hill arising from Hurricane Fran and then not reimbursing Jennings;
“(4) Dorrance encouraging Jennings to attend parties where teammates were present even though Jennings told him that she did not want to attend because she was underage and some women were drinking alcohol at the parties; and
“(5) Dorrance making sexual comments at practice, such as asking a team member who is ‘shacking up’ and asking another teammate who a team member’s ‘f*** of the week’ is.
The appeals court summarized that Ehringhaus “tried to get an understanding of the context of Dorrance’s alleged conduct and comments.” She then “encouraged Jennings to talk with Dorrance about all of these issues.”
At the end of the season, Jennings met with Dorrance, where initially her grades were called into question – she had a GPA of 1.58. The conversation, she claims, quickly turned to “whether her social life was adversely affecting her grades.
“As part of that inquiry, Jennings testified that Dorrance specifically asked Jennings, ‘Who are you f***ing?’ and whether it was adversely affecting her grades. Although Jennings testified that Dorrance used the word ‘f***’ a lot during practice, the question took her aback. Jennings immediately told Dorrance that her personal life was ‘none of his g** d*** business.’”
More than a year later, Jennings was cut from the team, purportedly for a failure to perform on the field and academic reasons. Dorrance wrote in a letter to then AD John Swofford that Jennings “cannot compete at this level and to make matters worse she does not fit in socially with the team. I have tried to talk to her on several occasions (including once in my home) and nothing is helping. She is not happy and frankly I don’t see it changing.”
Jennings and Keller sued. The district court granted the defendant’s motion for summary judgment, writing that “Mr. Dorrance did not initiate these discussions or steer the players’ conversation in the direction of sex. The comments were only ‘mere utterances,’ and not physically threatening. There is no evidence, beyond Ms. Jennings vague assertion, that the atmosphere at practice interfered with her performance on the field or in the classroom.”
The plaintiffs appealed.
In the instant opinion, the majority of circuit judges looked at the fact that a college coach is in a “different position” than a “typical university instructor.”
Appeals Court: College Coaches Have Wide Latitude in Conversations
“A typical college coach is going to have much more informal, casual, one-on-one contact with a student-athlete than a typical university instructor will have with a student. College sports often involve long daily practice sessions, overnight travel, down-time before and after games and practices, and the need for a coach to discuss issues associated with academic performance, athletic performance, and health (including such topics as diet, weight, and physical fitness).
“Additionally, although this case does not involve any issue of improper touching, a college coach is much more likely to demonstrate an athletic move with a hands-on demonstration and more likely to celebrate an individual or team success with a high five or a hug. Likewise, some coaches will use profanity, slang, sarcasm, or ham-handed humor, or will yell at a player or group of players to express displeasure, to make a point, or to motivate. Such lapses in linguistic gentility do not necessarily equal a sexually hostile educational environment. This is true whether the coach is a woman coaching women, a man coaching men, a woman coaching men, or a man coaching women.
“In this case, we conclude that no reasonable jury could find that Dorrance’s remarks during Jennings’ two-year tenure on the team were sufficiently severe or pervasive to create a sexually hostile educational environment.
“A recent Title IX case dealing specifically with the interaction between a collegiate athlete and her coach supports the conclusion that Dorrance’s actions do not create a jury question as to whether the alleged conduct was sufficiently severe or pervasive. In Klemencic v. Ohio State University, 10 F. Supp. 2d 911 (S.D. Ohio 1998), aff’d, 263 F.3d 504 (6th Cir. 2001), the district court granted summary judgment for Ohio State University against a student athlete’s Title IX claim that her college coach created a hostile educational environment. Klemencic, a cross-country runner whose eligibility to compete had expired but who still wished to train with the team, alleged that the school’s male cross-country coach created a hostile environment over a two-year period by asking her out on two dates, sending her a sexually suggestive photograph and article cut from a tabloid magazine, offering her rides home from practice, extending the use of his apartment when her lease expired, and asking about her relationship with her boyfriend. Klemencic, 10 F. Supp. 2d at 916-17. Assuming these alleged facts as true for purposes of summary judgment, the district court held that these actions did not ‘appear to have been more than ‘merely offensive,’ if offensive at all,’ and granted Ohio State’s motion for summary judgment. Id. at 917 (citation omitted). On appeal, the Sixth Circuit affirmed. Klemencic, 263 F.3d at 511.”
The dissenting judge took a different view, tying its opinion to the university’s initial recognition that Dorrance’s actions were “altogether inappropriate” and “unacceptable.”
“To these damning admissions, Jennings adds evidence that Dorrance frequently participated in discussions with his team about sex, that his comments and questions were graphic, indecent, and probing, and that she and several of her teammates felt humiliated and degraded. The University knew what Dorrance was doing and failed to take prompt action to stop it. Jennings has therefore proffered sufficient facts to demonstrate that there is a genuine need for a trial on her Title IX case against the University and her § 1983 claim against Dorrance and Ehringhaus.”
Jennings et al. v. University of North Carolina at Chapel Hill et al.; 4th Cir.; No. 04-2447; 2006 U.S. App. LEXIS 8869; 4/11/06
Attorneys of Record: (for appellant) Daniel Francis Konicek, KONICEK & DILLON, P.C., Geneva, Illinois. (for appellees) Thomas J. Ziko, Special Deputy Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina,