Plaintiff’s Failure to Notify School in Sex Harassment Case Is Costly

Jan 13, 2005

A California state appeals court has upheld a trial court’s decision to grant summary judgment to defendants in a sexual harassment case. The plaintiff, a freshman varsity softball player, alleged that the defendants had violated her civil rights under Section 1983 and under Title IX of the Civil Rights Act.
The panel of judges held that plaintiff Melissa Ashby failed to provide sufficient evidence of pervasive sexual harassment or that the school district was aware of the harassment, and therefore the trial court properly granted summary judgment to the defendants, which included the high school’s principal, vice-principal, and two coaches. The plaintiff did not bring any charges against her softball coach, with whom she had a close personal relationship.
Ashby’s major point of contention was that the defendants failed to know about and prevent team members from calling her names. However, the judge found that when unaided by the student, the school is without the means to control the situation. Since Ashby failed to complain to school officials regarding inappropriate student comments, the school’s failure to act cannot be a basis for liability under either Title IX or section 1983.
The judge determined Ashby lacked any conclusive evidence. The plaintiff was “unable to identify any single person” who called her names and “could not recall the name of any student who had made such remarks.”
The judge felt the school had acted in good faith. Ashby only brought one potentially harassing remark to the attention of school officials, and school officials immediately took action. Since the vice-principal promptly made the student apologize to the plaintiff, defendants had acted appropriately under the situation. Defendants’ actions did not create any civil rights violations.
The judge further determined school officials took proper precautions in distancing the plaintiff and her varsity softball coach. The name-calling evidently arose from what school officials regarded as improper relations between the varsity coach and plaintiff Ashby. Since Ashby was the only a freshman on the varsity team and often received personal attention from the coach, plaintiff claimed other softball team members began to resent her. What resulted was a perception from other players that the coach and plaintiff were involved in a homosexual relationship.
School officials attempted to quell the personal attentions between the coach and Ashby, verbally instructing the coach that because of the perception of favoritism by other team members, the softball coach should maintain a proper professional distance and refrain from meeting alone with the plaintiff.
Both the coach and Ashby failed to follow the directive. The principal later issued a memorandum to Ashby’s softball coach reiterating the need for discretion. Ashby and her coach continued to be seen together both during and outside school functions. After being placed on administrative leave, the softball coach resigned and also filed suit for sexual harassment.
Plaintiff alleges the principal’s memorandum was a direct result of gossip that she and the softball coach were homosexually involved and caused her severe emotional distress. The judge however felt Ashby’s “own conduct actively exacerbated the perception of favoritism or personal involvement which she complains that defendants should have somehow prevented.”
Title IX liability requires evidence of harassment based upon the victim’s sex, not upon personal animosity. While the harassment Ashby complained of took the form of name-calling concerning her perceived sexual orientation, “plaintiff herself ascribed other motives – jealousy and resentment.”
Section 1983 permits an action against state or local officials for intentional gender discrimination – a violation requires that the defendant has acted as within the scope of official duties. Here, plaintiff named the individual defendants only and not the District and asserted claims against “the individual defendants in their personal, not their official, capacities,” and therefore lacked a section 1983 claim. Ashby v. Hesperia Union School District et al.; Ct.App.Calif. 4th Dist.,Div.2; E034905; 11/29/04
Attorneys of Record: (for plaintiff) Stanley W. Hodge and Arshak Bartoumian. (for defendants) Jules S. Zeman, Bonnie Bailey-Jones, Kevin M. Osterberg, and Stephen M. Caine of Haight Brown & Bonesteel.


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