# Quid Pro Quo Sexual Harassment Claim Survives Summary Judgment Against Shippensburg University of Pennsylvania

In Doe v. Shippensburg University of Pennsylvania, 1:20-CV-01416, 2022 WL 676970 (M.D.Pa. March 7, 2022), the court, inter alia, denied defendant’s motion for summary judgment on plaintiff’s quid pro quo sexual harassment claim asserted under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681.

In sum, plaintiff Doe was a graduate student at, and employed as a graduate assistant at, defendant university. Her supervisor was Dr. Roe, an assistant dean. The allegations in this case arose from a conference attended by both.

From the decision:

Doe proceeds on a theory of quid pro quo sexual harassment, not a hostile work environment.36 “To establish a quid pro quo sexual harassment claim [Doe] must show (1) that she belongs to a protected group; (2) that she was subject to unwelcome sexual harassment; (3) that the harassment was based on her sex; and, (4) that a tangible educational action resulted from her refusal to submission to or rejection of the sexual harassment.”37 Again, I address each element of quid pro quo sexual harassment in turn.

First, Doe “is a female and, thus, belongs to a protected class.”38 Second, Doe testifies that Roe repeatedly made sexual advances toward her, including propositions to participate in a ménage à trois with Roe and a man.39 Doe also testifies that she rejected these advances.40 From these solicitations and rejections, a reasonable factfinder could conclude that Doe was subject to unwelcome sexual harassment based on her sex.41 So Doe survives summary judgment as to the first three elements.

As for the fourth element, Doe and Roe attended a conference in New Orleans starting on August 6, 2019.42 At this conference, Roe asked for a key to Doe’s room, but Doe declined.43 Doe also declined Roe’s request to accompany her on a date with a man.44 Not long after, on August 12, 2019, Roe emailed the Dean to complain about Doe’s behavior at the conference.45 And on August 20, 2019, Shippensburg University terminated Doe’s employment.46

Notably, these events occurred within a few days or weeks of each other. This close timing, combined with the Dean’s admission that Roe’s email influenced the decision to terminate Doe,47 allows a reasonable factfinder to conclude that Doe’s termination resulted from her refusal to submit to or rejection of Roe’s advances. Accordingly, Doe survives summary judgment as to the fourth element of quid pro quo sexual harassment too.

Shippensburg University counters that it would have terminated Doe regardless of Roe’s reports about Doe’s behavior.48 It adduces testimony that Doe’s position was temporary and was going to end at some point soon anyway.49 But in her deposition, the Dean testified that Roe’s complaint about Doe’s behavior “was the final decisionmaker” and “was … basically the reason” for Doe’s termination.50

The court concluded that “[t]his conflicting testimony creates a genuine dispute of material fact about the reasons for Doe’s termination” which prohibited the court from granting defendant summary judgment on this issue.

It also found evidence of both “notice” and “deliberate indifference.” As to notice, the court held:

Doe “must also establish that an appropriate person had actual notice of the sexual harassment.”51 “An ‘appropriate person’ … is, at a minimum, an official of the recipient entity with authority to take corrective action to end the discrimination.”52 “While knowing of the mere possibility of harassment is not sufficient, absolute certainty that harassment has occurred is not required.”53

Here, Shippensburg University does not dispute that the Dean was an appropriate person for Title IX reporting purposes.54 Doe testified that at a pool outside the Dean’s home, Doe complained that Roe was “interfering with the work” and “putting [Doe] in very awkward positions.”55 But the Dean apparently responded that she did not “want to know.”56

And on August 12, 2019, Doe copied the Dean on an email complaining about Roe’s “harass[ment].”57 Doe also testified that the Dean stated that she “didn’t want to know” about Roe’s harassment at an August 14, 2019, meeting.58 From these interactions, a reasonable factfinder could conclude that the Dean had notice of Roe’s sexual harassment. Accordingly, Doe has adduced evidence of notice.

Finally, as to deliberate indifference, the court explained:

Next, Doe must prove deliberate indifference. “An official decision not to remedy any type of discrimination demonstrates deliberate indifference. A clearly unreasonable response to actual notice of harassment also amounts to deliberate indifference.”59

Here, a genuine dispute of material fact exists as to whether Shippensburg University’s response to Roe’s harassment was “clearly unreasonable.” On the one hand, Shippensburg University investigated and placed Roe on leave after terminating Doe.60 To a reasonable factfinder, this may indicate that Shippensburg University’s response was not clearly unreasonable.

On the other hand, Doe testified that the Dean repeatedly responded that she “didn’t want to know” about Roe’s harassment.61 And as I explained above, Doe’s termination may have resulted from her refusal to submit to or rejection of Roe’s advances. Viewed in a light most favorable to Doe, this response may be “clearly unreasonable” to a reasonable factfinder. Accordingly, there is a genuine dispute of material fact as to deliberate indifference.

Despite finding a genuine issue of material fact precluding summary judgment on plaintiff’s Title IX claim, the court granted defendant’s motion for summary judgment on plaintiff’s state law, finding that such claims are barred against defendant – a state university – on sovereign immunity grounds.