HENDRICHSEN v. BALL STATE UNIVERSITY

SARAH EVANS BARKER, United States District Judge

Plaintiff Melissa Hendrichsen filed suit against Defendants Ball State University ("BSU"), Alexander Kozlov, and "Does 1-10" under 42 U.S.C. § 1983 and 20 U.S.C. § 1681 ("Title IX") for damages resulting from alleged sexual harassment. Ms. Hendrichsen moved for summary judgment, and Defendants responded with a cross motion for summary judgment. For the reasons set out in detail below, we DENY Plaintiff's Motion for Summary Judgment and we GRANT Defendants' Cross Motion for Summary Judgment.

The following facts are undisputed. At all times relevant to this dispute, Plaintiff Melissa Hendrichsen was a student at Ball State University ("BSU") majoring in computer science. Compl. ¶¶ 3-4; Def.'s Br. in Supp. of Cross Motion for Summ. J. at 1-2. Alexander Kozlov was a professor in the computer science department and also a resident of Ms. Hendrichsen's BSU housing complex, where she shares an apartment with her child. Compl. ¶ 6; Def.'s Br. in Supp. of Cross Motion for Summ. J. at 2. Throughout the relevant time period, BSU maintained a policy on sexual harassment, distributed to employees in BSU's Faculty and Professional Personnel Handbook, which stated that sexual harassment would not be tolerated by BSU and imposed an affirmative obligation on BSU employees to report to the BSU Office of Equal Opportunity and Affirmative Action ("EOAA") any information indicating a significant likelihood of sexual harassment. Pl.'s Statement of Material Facts ¶¶ 5-7.

Starting in April 2001, Mr. Kozlov initiated conversations with Ms. Hendrichsen regarding the preparation of a final examination for a particular class that he was teaching. Id. ¶ 9. On April 28, 2001, Mr. Kozlov went to Ms. Hendrichsen's apartment with a copy of the final examination and waited while Ms. Hendrichsen completed it. Id. ¶ 8. From April 30 to May 4, Ms. Hendrichsen received anonymous flower deliveries at her residence. Id. ¶ 10; Def.'s Br. in Supp. of Cross Motion for Summ. J. at 2. On May 5, Mr. Kozlov left an anonymous note and flowers at Ms. Hendrichsen's apartment door. Compl. ¶ 7; Def.'s Br. in Supp. of Cross Motion for Summ. J. at 2. Attempting to ascertain the identity of her admirer, Ms. Hendrichsen exchanged a series of messages with Mr. Kozlov, inviting him to meet with her at her apartment on the evening of May 7, 2001. Compl. ¶ 9; Def.'s Br. in Supp. of Cross Motion for Summ. J. at 2. When Mr. Kozlov arrived at the apartment at the appointed time, Ms. Hendrichsen surmised (to her dismay) that Mr. Kozlov had sent the notes and flowers. Compl. ¶¶ 10; Def.'s Br. in Supp. of Cross Motion for Summ. J. at 2. Ms. Hendrichsen "hid from Kozlov" while Mr. Kozlov "lingered around the apartment" and eventually left. Pl.'s Statement of Material Facts ¶ 11. Ms. Hendrichsen later drafted a note to Mr. Kozlov, stating that she did not wish to have any contact with him aside from the typical, appropriate student-professor relations. Id. ¶ 14. On at least two occasions after this date — May 8 and May 9, 2001 — Ms. Hendrichsen found bunches of flowers outside her apartment door. Def.'s Br. in Supp. of Cross Motion for Summ. J. at 2.

Ms. Hendrichsen reported Mr. Kozlov's conduct to members of the BSU computer science department, who referred her to speak with the BSU ombudsperson, Beverlyn Grace-Odeleye. Ms. Odeleye met with Ms. Hendrichsen shortly thereafter, and referred her to the EOAA. On May 9, 2001, Ms. Hendrichsen submitted a charge of sexual harassment to the EOAA based on her recent contacts with Mr. Kozlov. Pl.'s Statement of Material Facts ¶ 23. Officials from the EOAA initiated an investigation into the matter, first interviewing Ms. Hendrichsen on May 9, and then interviewing Mr. Kozlov and providing him a summary of the charge against him on May 14, 2001. Pl.'s Statement of Material Facts ¶¶ 23-26; Def.'s Br. in Supp. of Cross Motion for Summ. J. at 4. On May 17, the EOAA issued its findings and conclusions regarding the sexual harassment charge. Pl.'s Statement of Material Facts ¶ 28; Def.'s Br. in Supp. of Cross Motion for Summ. J. at 4. It concluded that the facts did not support a finding of sexual harassment, but cautioned Mr. Kozlov that he should refrain from any further contact with Ms. Hendrichsen and that any retaliation against her would result in serious repercussions, perhaps termination. Pl.'s Statement of Material Facts ¶ 32; Def.'s Br. in Supp. of Cross Motion for Summ. J. at 4.

Ms. Hendrichsen also reported Mr. Kozlov's conduct to BSU's University Housing division. Id. ¶ 16; Compl. ¶ 12. On May 10, 2001, Administrator Deborah Newman sent Mr. Kozlov a "no-trespass" letter, informing him that he would be restricted from coming within a set distance from Ms. Hendrichsen's apartment building for a designated period of time. Pl.'s Statement of Material Facts ¶ 16. All overt actions by Mr. Kozlov ceased on May 10, 2001, after the "no-trespass" letter was issued. Pl.'s Memo. in Supp. of Mot. for Summ. J. at 3.

Following the issuance of the EEOA's findings and conclusion, Ms. Hendrichsen filed a complaint against BSU with the U.S. Department of Education Office of Civil Rights ("OCR"). Pl.s' Designation of Evidence, Vol. 1, exh. 16. Based on a review of the investigation conducted by BSU officials, and additional information provided by Ms. Hendrichsen, OCR concurred with the findings and conclusions of the EOAA. Id. Ms. Hendrichsen subsequently filed this lawsuit, which is now before us on the pending cross motions for summary judgment.

Federal Rule of Civil Procedure 56(c) provides that summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." A genuine issue of material fact exists if there is sufficient evidence for a reasonable jury to return a verdict in favor of the non-moving party on the particular issue. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Bellaver v. Quanex Corp., 200 F.3d 485, 492 (7th Cir. 2000) (citation omitted). The court must construe all facts in the light most favorable to the non-moving party and draw all reasonable and justifiable inferences in favor of that party. Liberty Lobby, Inc., 477 U.S. at 255; Del Raso v. U.S., 244 F.3d 567, 570 (7th Cir. 2001). However, the nonmovant "may not simply rest on his pleadings, but must demonstrate by specific evidence that there is a genuine issue of triable fact." Colip v. Clare, 26 F.3d 712, 714 (7th Cir. 1994) (citation omitted). A "mere scintilla of evidence in support of the plaintiff's position will be insufficient" to avoid summary judgment. Liberty Lobby, Inc., 477 U.S. at 252.

1. § 1983 claim

Defendants argue, and Ms. Hendrichsen does not respond to the argument, that Ms. Hendrichsen's claim under 42 U.S.C. § 1983 for violation of equal protection is preempted by her claim under Title IX for sex harassment. The Seventh Circuit has expressly held that "the availability of a Title IX claim preempt[s] claims under § 1983." Boulahanis v. Board of Regents, 198 F.3d 633, 640 (7th Cir. 1999) (Title IX claim preempts sex discrimination claim under § 1983), citing Waid v. Merrill Area Public Schools, 91 F.3d 857 (7th Cir. 1996) (same). Absent some indication that facts or legal principles distinguish the present case from those previously addressed by the Seventh Circuit, we see no reason why this holding should not apply with equal force to the instant claims. Therefore, Defendants' Cross Motion for Summary Judgment on Ms. Hendrichsen's § 1983 claim is GRANTED.

2. Sexual harassment claim

There exist three basic types of sexual harassment claims under Title IX: quid pro quo; hostile environment, and peer-to-peer. Mary M. v. North Lawrence Community School Corp., 131 F.3d 1220, 1226 n. 7 (7th Cir. 1998) (citations omitted). Here, Ms. Hendrichsen alleges that Mr. Kozlov's advances subjected her to a hostile educational environment. To establish a prima facie case of hostile environment sexual harassment under Title IX, a plaintiff must prove: "(1) plaintiff belongs to a protected group; (2) plaintiff was subjected to harassment; (3) the harassment was based on sex; (4) the harassment was so pervasive of severe that it altered the conditions of plaintiff's education;" and (5) some basis for liability. Mary M. v. North Lawrence Community Sch. Corp., 131 F.3d 1220, 1228 (7th Cir. 1997). Title IX provides a basis for liability only where a school official "who at a minimum has authority to address the alleged discrimination and to institute corrective measures on the recipient's behalf has actual knowledge of discrimination" and fails to correct such behavior in a manner that amounts to deliberate indifference. Gebser v. Lago Vista Independent School Dist., 524 U.S. 274, 290 (1998); Chontos v. Rhea, 29 F. Supp.2d 931, 933-34 (N.D.Ind. 1998).

The "deliberate indifference" standard applied to sexual harassment cases brought under Title IX mirrors that standard applied in municipal liability cases brought under 42 U.S.C. § 1983. Gebser, 524 U.S. at 291, citing Board of Comm'rs of Bryan Cty. v. Brown, 520 U.S. 397 (1997); City of Canton v. Harris, 489 U.S. 378, 388-392 (1989). In the § 1983 context, "deliberate indifference" encompasses more than mere negligence, but instead requires an official to knowingly disregard an excessive risk. E.g., Farmer v. Brennan, 511 U.S. 825, 837 (1994); Sanville v. McCaughtry, 266 F.3d 724, 734 (7th Cir. 2001). Negligence, even gross negligence, does not rise to the level of deliberate indifference; a defendant's conduct must approach criminal recklessness. DeWalt v. Carter, 224 F.3d 607, 620 (7th Cir. 2000), citing Nabozny v. Podlesny, 92 F.3d 446, 454 (7th Cir. 1996). More specifically, in the context of complaints regarding sexual harassment, a response that is "clearly unreasonable in light of the known circumstances" constitutes deliberate indifference. Davis v. Monroe County Bd. of Education, 526 U.S. 629, 648-49 (1999).

Here, Ms. Hendrichsen simply offers no evidence that BSU (through its employees) acted so recklessly or unreasonably as to demonstrate deliberate indifference with respect to her complaints of harassment. A number of BSU officials, starting with those in the computer science department and including those in the EEOA office, acted to refer Ms. Hendrichsen to the proper investigatory body and, once there, to interview the central parties and gather facts to illuminate the nature of her claim. Following interviews with both Ms. Hendrichsen and Mr. Kozlov, EEOA officials determined that the facts did not support a finding of sexual harassment. However, they cautioned Mr. Kozlov to refrain from contacting Ms. Hendrichsen and that any retaliation could result in his termination. In light of all the facts and circumstances, we cannot say that BSU officials acted unreasonably or that they disregarded any excessive risk that Ms. Hendrichsen might be subjected to sexual harassment. This finding is bolstered by the fact that, as Ms. Hendrichsen admits, all questionable contact by Mr. Kozlov ceased on May 10, 2001 — one week before the EEOA completed its investigation into the charges and briefed Mr. Kozlov on possible repercussions for future incidents.

Even if Ms. Hendrichsen could demonstrate that BSU officials had exhibited deliberate indifference to her complaints, she must also show that Mr. Kozlov's conduct was so "severe, pervasive, and objectively offensive that it can be said to deprive the victim of access to the educational opportunities or benefits provided by the school." Davis, 526 U.S. at 650. The Seventh Circuit has recommended that courts "look to Title VII to determine whether the alleged sexual harassment is severe and pervasive enough to constitute illegal discrimination on the basis of sex for purposes of Title IX." Smith, 128 F.3d at 1023. Whether harassment is so severe and pervasive as to be actionable under Title VII turns on a number of factors that "include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993). We must evaluate these factors from both an objective and a subjective viewpoint, "consider[ing] not only the actual effect of the harasser's conduct on his victim, but also the effect similar conduct would have had on a reasonable person in the plaintiff's position. Dey v. Colt Const. Development Co., 28 F.3d 1446, 1454 (7th Cir. 1994), citing Saxton v. American Tel. Tel. Co., 10 F.3d 526, 534 (7th Cir. 1993). "`[R]elatively isolated' instances of non-severe misconduct will not support a hostile environment claim." Saxton, 10 F.3d at 532, citing Weiss v. Coca-Cola Bottling Co. of Chicago, 990 F.2d 333, 337 (7th Cir. 1993).

The Seventh Circuit has held that behaviors like those about which Ms. Hendrichsen complains are not sufficiently severe or pervasive to rise to the level of sexual harassment under Title VII. In Weiss, for example, the court found that the following behavior did not rise to the level of actionable harassment: repeated requests for dates, placing "I Love You" signs into the victim's work area, and attempting to kiss the victim once in a bar (and perhaps twice in the office). Id. at 337. See also Saxton, 10 F.3d 526 (repeated instances of inappropriate and unwelcome touching and kissing did not create a hostile environment).

Ms. Hendrichsen alleges that an anonymous admirer (later learned to be Mr. Kozlov) left notes and flowers at the door to her residence. She further alleges that, when she did not appear at the time she had suggested they meet at her apartment, Mr. Kozlov "lingered around the apartment" and "looked in the windows." Following this incident, Ms. Hendrichsen alleges that Mr. Kozlov left additional bunches of flowers and notes outside her door from May 8-10, 2001, after she had expressed the desire not to pursue any social relationship, but she acknowledges that Mr. Kozlov ceased his contacts with her following the issuance of the May 10, 2001 "no-trespass" letter. Taken as a whole, this brief series of unwanted, perhaps inappropriate communications from Mr. Kozlov, however uncomfortable for Ms. Hendrichsen, would not be perceived by a reasonable person as severe, threatening, or humiliating. Instead, this exchange represents the type of relatively isolated, non-severe misconduct that the Seventh Circuit has declined to characterize as creating a hostile environment. Accordingly, Ms. Hendrichsen's Motion for Summary Judgment on the Title IX claim is DENIED, and BSU's Cross Motion for Summary Judgment on this claim is GRANTED.

For the reasons set forth in detail above, we find that 1) Ms. Hendrichsen's claim under 42 U.S.C. § 1983 is preempted by her Title IX claim; 2) Ms. Hendrichsen has failed to establish that she is entitled to judgment as a matter of law on her claim for sexual harassment under Title IX; and 3) Ms. Hendrichsen has failed to set forth admissible evidence from which a reasonable jury could find that BSU acted with deliberate indifference or that she was subjected to severe and pervasive conduct constituting sexual harassment. Accordingly, we DENY Ms. Hendrichsen's Motion for Summary Judgment and we GRANT Defendants' Cross Motion for Summary Judgment.

It is so ORDERED.