Melissa Jennings v. University of North Carolina, at Chapel Hill

Filed: June 2, 2006
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-2447
(CA-99-400-1)
MELISSA JENNINGS,
Plaintiff - Appellant,
and
DEBBIE KELLER,
Plaintiff,
versus
UNIVERSITY OF NORTH CAROLINA, at Chapel Hill;
ANSON DORRANCE, individually and as women’s
soccer coach at UNC; WILLIAM PALLADINO,
individually and as assistant women’s soccer
coach at UNC; CHRIS DUCAR, individually and as
assistant women’s soccer coach at UNC; BILL
PRENTICE, individually and as athletic trainer
at UNC; MICHAEL K. HOOKER, individually and as
Chancellor at UNC; SUSAN EHRINGHAUS,
individually and as assistant to the
Chancellor at UNC; RICHARD A. BADDOUR,
individually and as Director of Athletics for
UNC; BETH MILLER, individually and as Senior
Associate Director of Athletics at UNC; JOHN
SWOFFORD, individually and as former Director
of Athletics for UNC; ALL DEFENDANTS,
Defendants - Appellees.
O R D E R
The court amends its opinion filed April 11, 2006, as follows:
On page 46, first full paragraph, line 9 -- the name “Scallon”
in the citation is corrected to read “Scollon.”

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-2-
On page 46, final paragraph, line 9 -- the phrase “go home an
fetch” is corrected to read “go home and fetch.”
For the Court - By Direction
/s/ Patricia S. Connor
Clerk

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 MELISSA JENNINGS,
Plaintiff-Appellant,
and
DEBBIE KELLER,
Plaintiff,
v.
UNIVERSITY OF NORTH CAROLINA, at
Chapel Hill; ANSON DORRANCE,
individually and as women’s soccer
coach at UNC; WILLIAM PALLADINO,
individually and as assistant
women’s soccer coach at UNC;
CHRIS DUCAR, individually and as
assistant women’s soccer coach at No. 04-2447 UNC; BILL PRENTICE, individually
and as athletic trainer at UNC;
MICHAEL K. HOOKER, individually
and as Chancellor at UNC; SUSAN
EHRINGHAUS, individually and as
assistant to the Chancellor at UNC;
RICHARD A. BADDOUR, individually
and as Director of Athletics for
UNC; BETH MILLER, individually
and as Senior Associate Director of
Athletics at UNC; JOHN SWOFFORD,
individually and as former Director
of Athletics for UNC; ALL
DEFENDANTS,
Defendants-Appellees. 
Rehearing en banc granted, June 8, 2006

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Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
N. Carlton Tilley, Jr., Chief District Judge.
(CA-99-400-1)
Argued: September 19, 2005
Decided: April 11, 2006
Before WILLIAMS and MICHAEL, Circuit Judges, and
James C. DEVER III, United States District Judge for the
Eastern District of North Carolina, sitting by designation.
Affirmed by published opinion. Judge Dever wrote the majority opin-
ion, in which Judge Williams joined. Judge Michael wrote a dissent-
ing opinion.
COUNSEL
ARGUED: Daniel Francis Konicek, KONICEK & DILLON, P.C.,
Geneva, Illinois, for Appellant. Thomas J. Ziko, Special Deputy
Attorney General, NORTH CAROLINA DEPARTMENT OF JUS-
TICE, Raleigh, North Carolina, for Appellees. ON BRIEF: Jeffrey T.
Mitchell, KONICEK & DILLON, P.C., Geneva, Illinois, for Appel-
lant. Roy Cooper, North Carolina Attorney General, Joyce S. Rut-
ledge, Assistant Attorney General, Raleigh, North Carolina; Douglas
E. Kingsbery, THARRINGTON, SMITH, L.L.P., Raleigh, North Car-
olina, for Appellees.
OPINION
DEVER, District Judge:
In this case we examine whether Anson Dorrance and William Pal-
ladino (the male coaches of the women’s soccer team at the Univer-
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sity of North Carolina at Chapel Hill) sexually harassed Melissa
Jennings while Jennings was a student and soccer player at the Uni-
versity from August 1996 until May 1998. Jennings seeks to hold the
University liable under Title IX, Dorrance, Palladino, and various
University officials liable under 42 U.S.C. § 1983, and Dorrance lia-
ble under state law. The district court rejected Jennings’ claims and
granted the defendants’ motion for summary judgment. On appeal,
Jennings argues that she is entitled to have a jury determine all of her
claims, including her claim that Dorrance created a sexually hostile
environment.
Laws prohibiting sexual harassment are designed to protect people
at work and at school from the kind of extreme conduct that can make
work or school hellish because of the person’s sex. The laws, how-
ever, are not designed to purge or punish all vulgarity at work or in
universities. Whether conduct constitutes actionable sexual harass-
ment cannot be divorced from the context in which the alleged harass-
ment arose. Thus, a court evaluating a sexual harassment claim must
examine the constellation of surrounding circumstances, expectations,
and relationships.
When the evidence in this case is viewed most favorably to Jen-
nings, the evidence shows that Dorrance used vulgar language and
participated in sexual banter at practice with some women that he
coached and that he once directed a vulgar question at Jennings. Jen-
nings immediately responded to Dorrance’s vulgar question with her
own profane reply and that ended the inquiry. Dorrance never
touched, never threatened, never ogled, and never propositioned Jen-
nings. Because no reasonable jury could find that Dorrance sexually
harassed Jennings or find that Jennings’ other claims have merit, we
affirm the judgment of the district court.
I.
Anson Dorrance ("Dorrance") has served as head coach of the
women’s soccer team at the University of North Carolina at Chapel
Hill ("University") since 1979. William Palladino ("Palladino") has
served as the team’s assistant coach since 1980. JA 336. Jennings
("Jennings" or "plaintiff") was a member of the women’s soccer team
and a student at the University from August 1996 until May 1998.
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From August 1996 through May 1998, the women’s soccer team
consisted of approximately 26 members. See JA 930. Some of the
women were on soccer scholarships and some were not. Jennings was
a third-string or fourth-string goalkeeper. JA 182. She was recruited
as a walk-on, and never was on scholarship. JA 181.
The regular season for women’s college soccer is in the fall. Dur-
ing 1996 and 1997, except on game days, soccer practice for the Uni-
versity’s team was every afternoon during the week and on Saturday
morning. JA 1042-43. Before soccer practice formally began each
day, the women on the team customarily warmed-up, ran a lap, and
stretched in small groups within a large circle for approximately ten
to fifteen minutes. JA 1046-47. These warm-ups were casual and
informal, and while stretching, the team members regularly talked and
joked among themselves about non-soccer related topics, such as
homework, social activities, and their personal lives (including dating
and their sex lives). JA 1047-53. Debbie Keller (a 1996 team captain)
described this as a time "at the beginning of practice to talk about our
day and then get serious for practice." JA 1044. In terms of who
talked about their personal lives during warm-ups, Keller described
some women on the team "being very wide open about [their] per-
sonal li[ves]," others being in an intermediate group, and others being
reserved. JA 1053-56. Jennings testified that she did not participate
in any of the players’ discussions about their sexual activities. JA
1242-43, 1585.
Dorrance and Palladino would participate in these conversations
during warm-ups, although witnesses describe the extent of their
alleged participation differently. According to Keller, Dorrance and
Palladino would walk through the large circle once or twice a week
while the team was stretching and tease and joke around with team
members about various topics, including who the players were dating
and about their evenings the night before. JA 1057-59, 1061. Pal-
ladino would "generally laugh and listen." JA 1059; see also JA 1060-
61. According to Keller, Dorrance "occasionally" would teasingly
inquire about who a player was dating and about a player’s sex life,
but Dorrance did not make comments about personal dating or sex
lives every time that he walked through the circle. JA 1066-68. Keller
also stated that Dorrance sometimes would ask some team members
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if they had been out drinking or would ask about team members’ fam-
ilies. JA 1067.
Amy Steelman, who was on the team from the fall of 1995 through
the fall of 1996, submitted a declaration stating that "[w]hen Anson
Dorrance was around, he would encourage and participate in sexual
discussions, sexual jokes, sexual talk, sexual banter, and sexual innu-
endos. A typical Monday afternoon included queries and discussions
with Anson Dorrance into the team members’ sexual . . . exploits
. . . ." JA 1452. Steelman’s declaration does not mention Palladino.
See id.
According to Jennings, Dorrance would frequently participate in
conversations at practice about players’ personal lives, including their
dating and sex lives. JA 1238-45, 1281-83, 1585. Dorrance allegedly
would ask some team members with whom they were sleeping and
encouraged discussion on other related topics. See JA 1452. Dor-
rance’s remarks were often crude. For example, one player informed
the team that she had had sex with one man, climbed out of his win-
dow, and then climbed into the window of another man’s apartment
to have sex with him. JA 1055, 1058. Dorrance was present and asked
the player if she knew her sexual partners’ names or whether she took
tickets. JA 1236. He also referred to this player’s sexual partner as the
"f*** of the week." JA 1237.1 In addition, according to Jennings,
Dorrance would sometimes make comments about team members’
bodies, including comments about team members’ weight, legs, or
chests. JA 1275-79. For example, Dorrance once said that a "top
heavy" woman has a more difficult time playing soccer, and once
described a woman’s chest as her "rack." See JA 1236. Dorrance cal-
led another player "fat a**," JA 1228, told another player she had nice
legs, (JA 1233), and commented on another players’s "cute dimples,"
JA 1229. As for Palladino’s conduct, Jennings testified that Palladino
was present while Dorrance made comments, and "didn’t do anything
to stop it." JA 1291.2
1There is also evidence that Dorrance once questioned a player about
the size of her boyfriend’s genitalia (JA 1452), but there is no evidence
Jennings overheard this question.
2Dorrance describes his conduct very differently. He states in his affi-
davit: "I never initiated comments on those topics [of players’ boyfriends
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Jennings also testified that while coaching the team in 1996 and
1997, Dorrance used profanity, including using the words "f***" and
"unf***ingbelievable" and the phrases "what the f***," "f***ing bril-
liant," and "f***ing stupid." JA 1231-33, 1264-65, 1452. For exam-
ple, he would use such phrases when he believed that a player was
out of position or made a poor pass. JA 1231. Dorrance admits that
he sometimes used the word "f***" while coaching. JA 835.
As for comments that Dorrance directed at Jennings during practice
during her two years on the team, Jennings testified that Dorrance
never made any inappropriate comments about her body. JA 1243.
Jennings also admits that Dorrance never threatened her, never
touched her, never ogled her, and never propositioned her. She did
testify, however, that she could recall two incidents during her two-
year tenure on the team where her personal life was mentioned at
practice. First, Jennings testified that on one occasion during her
sophomore season (i.e., 1997) prior to one practice, she and some
teammates were sitting on some benches near the soccer practice field
with Dorrance nearby. JA 1252-54. Dorrance asked one of the players
whether her weekend visit with her boyfriend had been a "shag fest."
JA 1249. The teammate, who apparently knew that Jennings had gone
to visit her boyfriend at a different university the previous weekend,
attempted to involve Jennings in the conversation, asking "What
about Trim’n?"3 JA 1246-48, 1252. According to Jennings, Dorrance
and private lives], only infrequently heard players’ comments on those
subjects and even less frequently said anything to any player at those
times about those subjects." JA 186; see also JA 777 (letter to Debbie
Keller from Anson Dorrance dated March 19, 2004). Palladino likewise
testified that he "never initiated discussions on those topics, only infre-
quently heard players’ comments on those subjects and even less fre-
quently said anything to any player at those times about those subjects."
JA 336.
Several former soccer players who were on the team with Jennings
submitted affidavits consistent with Dorrance’s and Palladino’s descrip-
tions. (We refer to these players by their initials.) JA 320 (A.F. Affida-
vit); JA 324 (N.F. Affidavit); JA 330 (S.D. Affidavit); JA 332 (T.N.D.
Affidavit). Because we review the evidence in the light most favorable
to Jennings, we accept the truth of Jennings’ testimony, Keller’s testi-
mony, and Steelman’s testimony.
3"Trim’n" was Jennings’ nickname on the team. It was derived from
her custom license plate and Jennings testified that it had no sexual con-
notation. JA 1246-47.
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"chimed in," asking either "So Trim’n[?]" or "yes, what about
Trim’n?". JA 1246, 1252. Jennings ignored the comments of her
teammate and Dorrance and walked to the practice field to do "goal-
keeper stuff." JA 1255. Second, during stretching prior to practice,
one of Jennings’ teammates once asked her whom she was dating.
The teammate commented that Jennings had talked to a male after the
previous day’s game and the teammate wanted to know if the male
was a boyfriend or just a friend. JA 1257-59. Jennings responded that
the male was just a friend. JA 1258. The teammate teased Jennings
and said that he looked like more than a friend given that Jennings
hugged him. Id. Dorrance and Palladino were present during this con-
versation between Jennings and her teammate, but Jennings does not
remember whether Dorrance or Palladino said anything. JA 1258-60.
Beyond these two incidents, Jennings also complains that during a
water break at practice, Jennings overheard Dorrance and Bill Pren-
tice (a University athletic trainer) speaking. They were not speaking
to Jennings. According to Jennings, Dorrance and Prentice made a
comment which included the phrase "Asian threesome." Jennings
interpreted the comment to be a description of a fantasy involving two
teammates and one of the men. JA 1284-86. After the phrase "Asian
threesome" was used, Jennings overheard Dorrance "kind of chuckle"
and say "oh, yeah." JA 1285. That was the only time that Jennings
heard Dorrance use the phrase "Asian threesome." JA 1286.
During the fall of 1996, Jennings met with Susan Ehringhaus, then
Assistant to the Chancellor and Senior University Counsel. JA 1337-
39, 1341. Jennings told 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
(JA 1335); (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 (JA 1338, 1340); (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 (JA
197, 1340-41, 1344-45, 1350); (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 (JA 198, 1338-40,
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1347-48); 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 (JA 1341-44).
During the conversation, Ehringhaus tried to get an understanding of
the context of Dorrance’s alleged conduct and comments. JA 1339-
41, 1347. Jennings never told Ehringhaus that the sexual comments
were directed at her. JA 1346-47. Ehringhaus encouraged Jennings to
talk with Dorrance about all of these issues. JA 1342-44.
Later in the fall of 1996, Jennings again met with Ehringhaus and
spoke to her about getting reimbursed $400 for buying the Gatorade.
JA 1344-46. During that meeting, Jennings did not mention anything
about sexual comments at practice. JA 1345-46. After that meeting,
Craig Jennings (plaintiff’s father) wrote a letter to the University
about reimbursing his daughter for the Gatorade purchase. JA 1352-
53, 1411. The letter said nothing about sexual comments at practice.
Thereafter Dorrance reimbursed Jennings for buying the Gatorade. JA
1350-51.
Women’s college soccer culminates in a tournament for the
national championship. In December 1996, the soccer team was in
California for the Final Four. JA 1305. According to Jennings, that
weekend Dorrance individually met with each player (including Jen-
nings) in his hotel room for a routine end-of-year meeting. JA 1305-
08. Jennings understood the meeting’s purpose was to give each
player a performance evaluation as an individual player, a student,
and a team member. JA 1321-22.
After the player before Jennings had finished her meeting with
Dorrance, Dorrance told Jennings to come in and have a seat at a table
in his hotel room. JA 1308-09. Dorrance also took a seat at the table.
JA 1311-12. After some small talk, Dorrance talked about Jennings’
need to improve her grades because her grade point average ("GPA")
was below 2.0 on a 4.0 scale. JA 1314-15.4 Jennings believed that she
was in danger of losing her athletic eligibility due to poor grades. JA
1315. Dorrance told Jennings that her grades were not acceptable and
that she needed to bring them up. JA 1316. Dorrance then asked if she
4At the end of Jennings’ first semester, her GPA was 1.538 on a 4.0
scale. JA 1449.
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had been attending academic tutoring sessions. JA 1318. Jennings
said that she had been attending the tutoring sessions. Id.
As part of the conversation about her grades, Dorrance then asked
Jennings about whether her social life was adversely affecting her
grades. JA 1329-30. 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. JA 1329-30.5 Although
Jennings testified that Dorrance used the word "f***" a lot during
practice, the question took her aback. JA 1330-31. Jennings immedi-
ately told Dorrance that her personal life was "none of his g** d***
business." JA 1325-26, 1331.
Dorrance then immediately dropped the subject of her grades and
social life and started speaking with Jennings about her performance
as a player. JA 1327, 1333. Jennings had played in two games during
the year, a preseason game and a game when the team was "winning
by a lot." JA 1334. Dorrance spoke to her about her playing statistics
and conditioning statistics and told Jennings that she needed to
improve as a player and improve her conditioning. JA 1327-28.
Thereafter, the meeting ended. JA 1328-29, 1333.
Jennings returned to the soccer team in the fall of 1997. JA 1356.
Jennings played in one or two games. Id. At the end of the season in
the fall of 1997, Dorrance again had one-on-one meetings with all of
the players, including Jennings. JA 1360-61. The meetings took place
at "the Hut," which is a trailer next to the soccer practice field. JA
964. In the meeting with Jennings, Dorrance noted that Jennings’
grades had improved, but could be better. JA 1361-62.6 Dorrance also
told Jennings that she was not meeting the team standards for fitness
and training or the team standards for contributing to positive team
5Dorrance denies meeting with Jennings during the 1996 Final Four
(JA 185) and also denies asking Jennings (or any other player) this ques-
tion. JA 186, 1529. Of course, in reviewing an order granting summary
judgment, we review the evidence in the light most favorable to Jennings
and therefore accept the truth of her testimony on this point.
6Jennings’ cumulative GPA at the end of her freshman year was 1.539,
at the end of the 1997 summer session was 1.903, and at the end of the
fall 1997 semester was 1.964. JA 1449-50.
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chemistry. JA 1362-63. Dorrance told Jennings that she was in danger
of being cut from the team if her performance did not improve. JA
1363.
On May 5, 1998, Dorrance met with Jennings at the Hut. JA 1384,
183. Dorrance told Jennings that her fitness and conditioning statistics
and her contributions to positive team chemistry were not at an ade-
quate level and cut her from the team. JA 1387-90; see also JA 183,
282-84. Jennings is not the only reserve that Dorrance has cut from
the team for failure to contribute to the team in two of the three areas
in which reserve players are evaluated. JA 184.
Jennings testified that she was shocked and upset that she was cut.
Up to that point, Jennings was happy with her performance on the
team and believed she was improving. JA 1388. While on the team,
Jennings never sought or received any psychological care or treat-
ment. JA 1419-21, 656-67.
Craig Jennings (plaintiff’s father) wrote Ehringhaus a letter dated
May 12, 1998. JA 1543, 1551. Although Craig Jennings had com-
plained in the fall of 1996 about the Gatorade incident and the pres-
ence of alcohol at parties, he now complained (for the first time)
about questions and comments that Dorrance allegedly made at prac-
tice and during player reviews to women on the team about their per-
sonal lives. JA 1543, 1551. Craig Jennings’ letter stated:
During the past few days, I have learned much more con-
cerning Coach Dorrance’s actions towards our daughter
Melissa over the past eighteen months. Mrs. Jennings and I
believe that you and Chancellor M. Hooker would find some
of these actions just as repulsive and not representative of
the UNC staff. Coach Dorrance has in every player/coach
review (except the one last week) and at the practice field
asked the following questions:
1. Who is your boy friend? Are you seeing anyone? What
does he do? Are you enjoying the UNC campus? We per-
sonally do not find these questions totally offensive, but the
answers are Melissa’s to give, if she chooses without retri-
bution.
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2. When answering yes to a boy friend or after bringing
friends to team activities he then has asked the following:
Are you sleeping with him? Are you shacking up with him?
We find both of these questions totally inappropriate and
harassing!
3. The Monday practice session team question has been on
numerous occasions: Who is shacking up with whom? He
will even question roommates on the field about the exploits
of their teammates?
4. To one team member (not Melissa), he asked the team
who her S— for the week is/was? Like most of the team
members, she can not respond because he totally owns her
way through your fine institution and controls her ability to
go to your school. This is the sickest form of harassment.
Items two through four above, we find extremely disturbing
and completely inappropriate of any UNC staff member to
ask a student, another UNC employee, and an athlete. We
are also confident that this practice has gone on for more
than just the past two years. Mrs. Jennings and I could be
wrong and the UNC policies do allow staff members, pro-
fessors, and managers to ask such personal questions of a
student’s very private activities. If that is the case, I believe
every parent considering sending or keeping a student at
UNC Chapel Hill should be made aware of what their stu-
dent could expect.
We are also very disappointed that we have brought to your
attention several very serious matters ie [sic]: forcing a
player to give considerable money, participate in alcohol
activities, and now the above. The coach has not recognized
these as inappropriate activities and has only responded in
a very negative manner including last week. I look forward
to your phone call this week now that everyone is back in
town.
JA 1551-52.
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The University has had written policies against sexual harassment
since the early 1990’s, and had informed the students, staff, and fac-
ulty of the policies. See JA 199-200, 305-06, 719-25, 789-90, 923-26.
Dorrance was aware of the policies. JA 804-05.
After Ehringhaus received Craig Jennings’ May 12 letter, she for-
warded the letter to Athletic Director Richard Baddour. JA 200.
Thereafter, Senior Associate Athletic Director Beth Miller began an
investigation. JA 264. Miller also arranged a meeting with Jennings,
Craig Jennings, Ehringhaus, Baddour, Dorrance, and herself. JA 264-
65, 266, 661-62.
On May 26, 1998, Jennings and her father, Craig Jennings, met
with Baddour, Miller, Ehringhaus, and Dorrance. JA 1400-02, 1479-
80. Ehringhaus asked Jennings if she wanted to speak without Dor-
rance present, but Jennings declined because it did not matter to her
that Dorrance was in the room. JA 1405. At the meeting, Jennings
recounted (among other things) Dorrance’s alleged conduct at prac-
tices (including inquiries about other players’ personal lives and sex-
ual comments) and his alleged comment to her in the one-on-one
meeting in December 1996. JA 1404-06. Dorrance strongly denied
ever discussing sexual activity in a one-on-one meeting with any
player, but acknowledged that he participated in group discussions at
practice of a jesting or teasing nature with women on the soccer team.
JA 1404, 1531.
By letter dated June 9, 1998, Athletic Director Baddour wrote
Craig Jennings a letter which stated:
Any unwelcomed discussions, including jesting, regard-
ing sexual activity and team members’ relationships with
men are inappropriate in the context you described. While
Coach Dorrance strongly denies that he has ever discussed
an individual team member’s sexual activity in a one-on-one
discussion, Coach Dorrance has acknowledged that he par-
ticipated in group discussions of a jesting or teasing nature
with soccer team members. This is altogether inappropriate.
While his actions were not intended to be offensive, he now
realizes that his involvement in such discussions is inappro-
priate, and he will immediately discontinue that activity.
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Appropriate interventions have also occurred with Coach
Dorrance to address these unacceptable conversations.
JA 1531. Dorrance endorsed the apology. Id.
By letter dated June 10, 1998, Athletic Director Baddour wrote
Dorrance a letter. It stated:
As I indicated to you in our last meeting I am writing to
officially notify you that it is inappropriate for you to have
conversations with members of your team (individually or
in any size group) regarding their sexual activity. Please
refer to my letter of June 9, 1998 to Craig Jennings.
JA 1533; see also JA 1459, 1515-18.
II.
On August 25, 1998, Jennings and Keller sued the defendants. On
November 13, 2002, the district court granted in part the defendants’
motion to dismiss. Jennings v. Univ. of N.C. at Chapel Hill, 240 F.
Supp. 2d 492 (M.D.N.C. 2002). The parties proceeded with discovery
on the remaining claims, which included: (1) a Title IX claim against
the University; (2) section 1983 claims for damages against Dorrance
for invasion of privacy, against Dorrance and Palladino for sexual
harassment, and against University officials Susan Ehringhaus, John
Swofford, Richard Baddour, Beth Miller, and the estate of Michael
Hooker7 for failure to supervise Dorrance and Palladino and prevent
the alleged violations of Jennings’ rights; and (3) a common law inva-
sion of privacy claim against Dorrance.
Keller settled her claims with the defendants. On March 24, 2004,
Keller and the defendants filed a stipulation of dismissal with preju-
dice as to Keller’s claims. See JA 15.
The defendants moved for summary judgment on all remaining
claims. Jennings, the sole remaining plaintiff, opposed the motion for
7Michael Hooker died on June 29, 1999.
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summary judgment and moved to strike the defendants’ amended
answer and for default judgment, alleging that Dorrance’s deposition
testimony contradicted assertions put forth in the amended answer.
Jennings also moved to strike a number of exhibits attached to Dor-
rance’s affidavit, which had been submitted in support of the motion
for summary judgment. On October 27, 2004, the district court
granted summary judgment to the defendants on all remaining claims
and denied plaintiff’s motions. Jennings v. Univ. of N.C. at Chapel
Hill, 340 F. Supp. 2d 666 (M.D.N.C. 2004).
Jennings filed a timely notice of appeal. We have jurisdiction over
this appeal pursuant to 28 U.S.C. § 1291.
III.
We review the district court’s grant of summary judgment de novo.
Hill v. Lockheed Martin Logistics Mgmt., 354 F.3d 277, 283 (4th Cir.
2004) (en banc). Summary judgment is appropriate when, after
reviewing the record taken as a whole, there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter
of law. Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986). The party seeking summary judg-
ment has the initial burden to show absence of evidence to support the
non-moving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325
(1986). The opposing party must demonstrate that a genuine issue of
material fact exists. Mere allegations or denials are insufficient.
Anderson, 477 U.S. at 248. A mere scintilla of evidence supporting
the case is also insufficient. Id.; see also Shaw v. Stroud, 13 F.3d 791,
798 (4th Cir. 1994). We construe the evidence in the light most favor-
able to the non-moving party and draw all reasonable inferences in
the non-movant’s favor. Matsushita Elec. Indus. Co., 475 U.S. at 587-
88.
IV.
Title IX states in relevant part: "No person in the United States
shall, on the basis of sex, be excluded from participation in, be denied
the benefits of, or be subjected to discrimination under any education
program or activity receiving Federal financial assistance." 20 U.S.C.
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§ 1681(a) (2004). Title IX applies to the University, including its ath-
letic department and women’s soccer program. See 20 U.S.C. § 1687.
A.
In Cannon v. University of Chicago, 441 U.S. 677, 717 (1979), the
Supreme Court held that Title IX is enforceable through an implied
right of action. In Franklin v. Gwinnett County Public Schools, 503
U.S. 60, 63-64 (1992), the Court analyzed a Title IX claim involving
the alleged sexual harassment of a female high school student by one
of her male teachers. The Court reviewed a motion to dismiss and
addressed whether such a plaintiff could recover monetary damages
from the school district (i.e., the Title IX funding recipient) or was
limited to injunctive relief. Id. The Court held that the implied right
of action under Title IX supports a claim for monetary damages
against the school district. Id. at 76. The Court in Franklin, however,
did not address the standard to be applied in assessing the validity of
a sexual harassment claim under Title IX or the standard to be applied
for liability to attach to the school district.
In Gebser v. Lago Vista Independent School District, 524 U.S. 274
(1998), the Court addressed when a school district may be held liable
for damages in an implied right of action under Title IX for the sexual
harassment of a high school student by one of the district’s teachers.
The Court held "that damages may not be recovered in those circum-
stances unless an official of the school district who at a minimum has
authority to institute corrective measures on the district’s behalf has
actual notice of, and is deliberately indifferent to, the teacher’s mis-
conduct." Id. at 277. In Gebser, however, the Court did not address
what a plaintiff would have to demonstrate to establish an actionable
sexual harassment claim under Title IX.
In Davis v. Monroe County Board of Education, 526 U.S. 629
(1999), the Court considered a case of alleged student-on-student sex-
ual harassment in the fifth grade of an elementary school. The Court
held that a private damages action may lie against a school board in
the case of such student-on-student harassment "but only where the
funding recipient acts with deliberate indifference to known acts of
harassment in its programs or activities." Id. at 633. The Court noted
that "sexual harassment is a form of discrimination for Title IX pur-
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poses . . . ." Id. at 649-50. The Court held that a "plaintiff [in a
student-on-student case] must establish sexual harassment . . . that is
so severe, pervasive, and objectively offensive, and that so under-
mines and detracts from the victim’s educational experience that the
victim-students are effectively denied equal access to an institution’s
resources and opportunities." Id. at 651 (citing Meritor Sav. Bank,
FSB v. Vinson, 477 U.S. 57, 67 (1986)).
"Whether gender-oriented conduct rises to the level of actionable
‘harassment’ thus ‘depends on a constellation of surrounding circum-
stances, expectations, and relationships’ . . . including, but not limited
to, the ages of the harasser and the victim and a number of individuals
involved . . . ." Davis, 526 U.S. at 651 (quoting Oncale v. Sundowner
Offshore Servs., Inc., 523 U.S. 75, 82 (1998); citing OCR Title IX
Guidelines 12041-42 (1997)). As an example of actionable student-
on-student harassment under Title IX, the Court discussed male stu-
dents physically threatening their female peers "every day, success-
fully preventing the female students from using a particular school
resource — an athletic field or computer lab, for instance." Id. at 650-
51. If school district administrators were "well aware of the daily rit-
ual, yet they deliberately ignored requests for aid from the female stu-
dents wishing to use the resource . . . [then] [t]he district’s knowing
refusal to take any action in response to such behavior would fly in
the face of Title IX’s core principles, and such deliberate indifference
may appropriately be subject to claims for monetary damages." Id. at
651.
B.
A plaintiff asserting a Title IX hostile environment claim must
show: (1) that she belongs to a protected group (e.g., a student at an
institution covered by Title IX); (2) that she was subjected to harass-
ment based on her sex; (3) that the harassment was sufficiently severe
or pervasive8 to create an abusive educational environment; and (4)
8It is unclear whether the heightened standard of "severe, pervasive,
and objectively offensive" announced in the student-on-student harass-
ment context in Davis also applies to teacher-on-student harassment
cases. See Davis, 526 U.S. at 649-51. Compare Hayut v. State Univ. of
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a cognizable basis for imputing institutional liability under Title IX.
See Hayut v. State Univ. of N.Y., 352 F.3d 733, 745-53 (2d Cir. 2003);
Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 66 (1st Cir. 2002).9
In analyzing whether a person was subjected to actionable sexual
harassment under Title IX, courts have looked to precedent under
Title VII. See, e.g., Frazier, 276 F.3d at 65-66; see also Smith v.
Metro. Sch. Dist. Perry Twp., 128 F.3d 1014, 1023 (7th Cir. 1997);
Lam v. Curators of the Univ. of Mo., 122 F.3d 654, 656-67 (8th Cir.
1997). Courts have done so because the Supreme Court in Franklin
N.Y., 352 F.3d 733, 745 (2d Cir. 2003) (applying "severe or pervasive"
standard in teacher-on-student harassment case) with Johnson v. Galen
Health Insts., Inc., 267 F. Supp. 2d 679, 685 (W.D. Ky. 2003) (ultimately
applying "severe, pervasive, and objectively offensive" standard in
teacher-on-student harassment case). At summary judgment in this case,
the district court applied the heightened standard stated in Davis. Jen-
nings, 340 F. Supp. 2d at 674. The parties did not brief this issue and
were at times internally inconsistent as to what standard should apply.
(Compare Appellees’ Br. 19 (stating that "severe or pervasive" standard
governs) with Appellees’ Br. 32 (stating that "severe, pervasive, and
objectively offensive" standard governs); compare Appellant’s Opening
Br. 21 (referencing "severe, pervasive, and objectively offensive" stan-
dard) with Appellant’s Opening Br. 16, 19 (referencing "severe or perva-
sive" standard).) Because we conclude that plaintiff’s claims fail under
the lower "severe or pervasive" standard, we need not determine whether
the more rigorous standard articulated in Davis applies in this case.
9Title IX was enacted pursuant to Congress’ spending power and pro-
hibits discriminatory acts by funding recipients. Because school officials
are not funding recipients under Title IX, school officials may not be
sued in their individual capacities under Title IX. Hartley v. Parnell, 193
F.3d 1263, 1270 (11th Cir. 1999) (holding that individual school officials
may not be held liable under Title IX); Kinman v. Omaha Pub. Sch.
Dist., 171 F.3d 607, 611 (8th Cir. 1999) (collecting cases); Smith v.
Metro. Sch. Dist. Perry Twp., 128 F.3d 1014, 1021 (7th Cir. 1997) (hold-
ing that because "neither a principal nor an assistant principal can be
considered a grant recipient," plaintiff’s Title IX claim against those per-
sons must fail); see also Nat’l Collegiate Athletic Ass’n v. Smith, 525
U.S. 459, 468-69 (1999) (receipt of dues from member colleges and uni-
versities does not subject NCAA to suit under Title IX).
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and Davis cited its Title VII jurisprudence. See Davis, 526 U.S. at
651; Franklin, 503 U.S. at 75.
In examining whether a plaintiff was subjected to actionable sexual
harassment under Title VII in the form of a hostile work environment,
we have stated that "a female plaintiff must prove that the offending
conduct (1) was unwelcome, (2) was based on her sex, (3) was suffi-
ciently severe or pervasive to alter the conditions of her employment
and create an abusive work environment, and (4) was imputable to her
employer." Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 331 (4th
Cir. 2003) (en banc). As for imputing liability to a Title IX funding
recipient, Title IX "conditions ‘an offer of funding on a promise by
the recipient not to discriminate, in what amounts essentially to a con-
tract between the Government and the recipient of funds.’" Baynard
v. Malone, 268 F.3d 228, 237 (4th Cir. 2001) (quoting Gebser, 524
U.S. at 286). Title IX requires that a funding recipient must actually
be aware of the discrimination and fail to remedy it. Id. "In other
words, a [funding recipient] may be held liable under Title IX ‘only
for its own misconduct’; the implied damages remedy is available
only when ‘the funding recipient engages in intentional conduct that
violates the clear terms of the statute.’" Id. (quoting Davis, 526 U.S.
at 642). The funding recipient cannot be held liable under principles
of respondeat superior or constructive notice. Id. "‘[A] damages rem-
edy will not lie under Title IX unless an official who at a minimum
has authority to address the alleged discrimination and to institute cor-
rective measures on the [funding recipient’s] behalf has actual knowl-
edge of discrimination and is deliberately indifferent to it.’" Id.
(quoting Gebser, 524 U.S. at 290).
C.
Jennings argues that a genuine issue of material fact exists as to
whether Dorrance and Palladino created a hostile environment based
on her sex under Title IX. Jennings relies on the regular nature of
Dorrance’s sexual comments at practice during her two years on the
team, the severity of the question in the hotel room in December
1996, the age difference between Dorrance and the plaintiff, and the
position of power Dorrance held over the plaintiff as her college soc-
cer coach. The defendants respond that the conduct was not suffi-
ciently severe or pervasive, that the conduct was not based on
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Jennings’ sex, and that no basis exists to impute liability to the Uni-
versity.
In analyzing an alleged hostile work environment based on sex in
the Title VII context, the "conduct must be extreme to amount to a
change in the terms and conditions of employment." Faragher v. City
of Boca Raton, 524 U.S. 775, 788 (1998). The work environment
must have been "permeated with discriminatory intimidation, ridicule
and insult . . . that [was] sufficiently severe or pervasive to alter the
conditions" of plaintiff’s work environment and have created a hostile
environment based on sex. Harris v. Forklift Sys., Inc., 510 U.S. 17,
21 (1993) (quotations omitted). This standard "protects . . . working
women from the kind of male attentions that can make the workplace
hellish for women." Ocheltree, 335 F.3d at 333 (quotation omitted);
see Anderson v. G.D.C., Inc., 281 F.3d 452, 456-59 (4th Cir. 2002);
Smith v. First Union Nat’l Bank, 202 F.3d 234, 238-43 (4th Cir.
2000). At the same time, "[c]onduct that is not severe or pervasive
enough to create an objectively hostile or abusive . . . environment —
an environment that a reasonable person would find hostile or abusive
— is beyond Title VII’s purview." Harris, 510 U.S. at 21.
Under Title VII, a court must look at all of the circumstances,
including "the frequency of the discriminatory conduct; its severity;
whether it is physically threatening or humiliating, or a mere offen-
sive utterance; and whether it unreasonably interferes with an
employee’s work performance." Id. at 23. No one factor is disposi-
tive. However, simple teasing, sporadic use of abusive language, off-
hand comments, gender-related jokes, and isolated incidents (unless
extremely serious) will not amount to discriminatory changes in the
terms and conditions of employment. Faragher, 524 U.S. at 788. Title
VII is not intended to serve as a workplace civility code, is not
designed to purge the workplace of vulgarity, and does not counte-
nance a federal cause of action for unpleasantness. Id.; Anderson, 281
F.3d at 459; Hartsell v. Duplex Prods., Inc., 123 F.3d 766, 773 (4th
Cir. 1997). Likewise, the totality-of-the-circumstances analysis recog-
nizes that some behavior would be abusive in one setting, but not abu-
sive in another setting. See Oncale, 523 U.S. at 81 (a football player’s
environment "is not severely or pervasively abusive . . . if the coach
smacks him on the buttocks as he heads onto the field — even if the
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same behavior would reasonably be experienced as abusive by the
coach’s secretary (male or female) back at the office").
Under Title VII, the "severe or pervasive" requirement has both
subjective and objective components. Harris, 510 U.S. at 21-22. The
objective component helps courts to "police the baseline for hostile
environment claims." Mendoza v. Borden, Inc., 195 F.3d 1238, 1244
(11th Cir. 1999) (en banc) (quotation omitted); see also Anderson,
281 F.3d at 458-59; Hartsell, 123 F.3d at 773. The Supreme Court in
Faragher made clear that the "conduct must be extreme" to be action-
able and that lower courts had appropriately applied the objective
component and granted summary judgment where "the alleged
harassment was not actionably severe or pervasive." 524 U.S. at 788.
On one side lies "the merely vulgar and mildly offensive" and on the
other lies "the deeply offensive and sexually harassing." Baskerville
v. Culligan Int’l Co., 50 F.3d 428, 431 (7th Cir. 1995) (quotation
omitted).
Before and after Faragher, in the context of motions for summary
judgment or motions for judgment as a matter of law, we have applied
the objective component to determine whether a reasonable jury could
find the alleged conduct to be actionably severe or pervasive. For
example, in Hartsell, we affirmed the entry of summary judgment
where male co-workers made comments to a female employee, over
a three-month period including: 1) stating that the male workers had
made every female employee "cry like a baby" and would do the
same to her; 2) stating that more "buxom" women were needed at the
office; 3) asking the plaintiff if she would become a "mini van driving
mommy"; and 4) stating that the plaintiff should go home to "fetch
[her] husband’s slippers like a good little wife." Hartsell, 123 F.3d at
773. The court noted that there were no allegations that the plaintiff
had been "inappropriately touched, propositioned, flirted with,
taunted, or even ogled." Id. The court also noted that "the only vulgar-
ities documented in the record — a reference to masturbation and pro-
fane name-calling — were uttered by Hartsell herself." Id.
Similarly, in Hopkins v. Baltimore Gas & Electric Co., 77 F.3d 745
(4th Cir. 1996), we upheld summary judgment for the employer in a
Title VII same-sex sexual harassment case because the alleged harass-
ment was insufficiently severe or pervasive to create an objectively
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hostile work environment. In Hopkins, over a seven-year period, the
supervisor at issue approached the plaintiff in the bathroom and said
"Ah, alone at last," wrote "kiss, kiss" and drew hearts on office mail
directed to the plaintiff, asked the plaintiff if he had gone on dates or
had sex with anyone recently, tried to greet the plaintiff at his wed-
ding by kissing him, placed a magnifying lens over the plaintiff’s
crotch and asked "Where is it?", asked the plaintiff how much he
liked the supervisor, tried to squeeze through doors at the same time
as the plaintiff in an effort to make physical contact, and regularly
commented on the plaintiff’s appearance. Id. at 747-48. In affirming
summary judgment, we noted that the supervisor’s conduct occurred
over several years and that most of the conduct and sexual comments
took place in group settings and were not directed at plaintiff. Id. at
753. We also noted that the supervisor never "made an overt sexual
proposition or touched [the plaintiff] in a sexual manner," and con-
cluded that, while the conduct at issue was "inappropriately forward,"
no reasonable jury could find that the conduct was actionably severe
or pervasive. Id.
Of course, we also have ruled on several occasions that questions
of severity and pervasiveness should go to the jury. For example, in
Smith v. First Union National Bank, 202 F.3d 234 (4th Cir. 2000), we
reversed the entry of summary judgment for the defendant-employer
after concluding that the conduct of the plaintiff’s supervisor created
a genuine issue of material fact as to whether the conduct was action-
ably severe or pervasive. Id. at 243. This conduct included "a barrage
of threats and gender-based insults" that plaintiff’s supervisor directed
at her and that occurred more than thirty times in the first few weeks
of plaintiff’s employment. Id. at 238. The supervisor routinely
directed demeaning comments about women at the plaintiff such as
stating that the only way a woman could get ahead at the bank was
to "spread her legs." Id. at 239. This conduct also included threatening
language such as directing the plaintiff that she should carry out his
orders "or else," and that he could "see why a man would slit a
woman’s throat." Id. The latter comment was made after the supervi-
sor spun the plaintiff around in her chair to face him. Id. We stated
that "[a] work environment consumed by remarks that intimidate, rid-
icule, and maliciously demean the status of women can create an
environment that is as hostile as an environment that contains
unwanted sexual advances." Id. at 242. We distinguished Hartsell, in
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part, on the grounds that the behavior in Smith included physical
threats. Id. at 243; see also Ocheltree, 335 F.3d at 328-29, 333 (find-
ing that daily vulgar talk and antics of male co-workers in a work
environment where the plaintiff was the sole female employee, when
coupled with three incidents directed at plaintiff including simulation
of sex acts on mannequins directed at plaintiff, vulgar and graphic jin-
gles directed at plaintiff, and vulgar and graphic pornography pre-
sented to plaintiff, were sufficient evidence for a reasonable jury to
find the conduct actionably severe or pervasive); Anderson, 281 F.3d
at 456-59 (overturning judgment as a matter of law after concluding
that "barrage" of sexual comments directed at plaintiff on "daily
basis" (including a threat to rape her) was "unquestionably sufficient"
to create a jury question as to whether the conduct was actionably
severe or pervasive); EEOC v. R&R Ventures, 244 F.3d 334, 337-40
(4th Cir. 2001) (jury question on whether the harassment was action-
ably severe or pervasive where male supervisor directed daily sexual
jokes and discussions of sexual positions and sexual experiences at
15-year-old female employee, repeatedly asked if she liked to be
spanked, and frequently said women were stupid as compared to men;
and where the same supervisor constantly flirted with a 20-year-old
female employee, complained to her about how long it had been since
he had sex, repeatedly made sexual comments to her, and belittled her
in front of her co-workers); Conner v. Schrader-Bridgeport Int’l, Inc.,
227 F.3d 179, 193-99 (4th Cir. 2000) (jury question on whether the
harassment was actionably severe or pervasive where plaintiff, over
a two-year period, was frequently given demeaning tasks and fewer
opportunities for promotion than male counterparts, routinely asked
if she "got any" the previous night or was "on the rag," was regularly
mocked, ridiculed, and physically threatened by male co-workers, and
was forced to remove the rags covering the bloodstains on her pants
after suffering uterine bleeding).
Using these Title VII cases as a helpful guide to examine the Title
IX environment at issue in this case, we now examine the evidence
that Jennings cites to support her argument that the environment to
which she was exposed was sufficiently severe or pervasive to raise
a jury question. Jennings relies on the following: (1) the sexual banter
that Dorrance engaged in at practice with other women on the team
and a comment that she once overheard Dorrance make at practice;
(2) the "severe" nature of the question Dorrance asked her in Decem-
22 JENNINGS v. UNIVERSITY OF NORTH CAROLINA

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ber 1996; (3) two incidents at practice where her personal life was
mentioned; (4) the age difference between plaintiff and Dorrance; and
(5) the position of power that Dorrance had over her arising from his
position as the soccer coach.10
As for the sexual banter that Jennings heard at practice while
stretching during her two years on the team, this banter occurred in
a group setting as approximately 26 women on the team warmed up
for a short period of time before practice and talked about a number
of topics, including schoolwork, social lives, who they were dating,
and their sex lives. These comments were not directed at Jennings.
Tellingly, Jennings does not appear to object to some of her team-
mates talking about their sex lives. Rather, she objects to Dorrance
participating in the conversations. Even if we assume Dorrance’s par-
ticipation in these conversations constitutes harassment, such
"‘second-hand’ harassment, although relevant, [is] less objectionable
than harassment directed at the plaintiff." Moser v. Ind. Dep’t of
Corr., 406 F.3d 895, 903 (7th Cir. 2005). For example, in White v.
Federal Express Corp., 939 F.2d 157, 161 (4th Cir. 1991) (per
curiam), we rejected the plaintiff’s race-based hostile work environ-
ment claim where it rested on a racially offensive exchange not
directed at plaintiff. Likewise, in Hopkins we upheld the entry of
summary judgment in the plaintiff’s sex based hostile work environ-
ment suit for several reasons, including that most of the incidents
about which the plaintiff complained took place in group settings and
were not directed at the plaintiff. Hopkins, 77 F.3d at 754. Similarly,
although the conduct in Ocheltree took place in a group setting within
a manufacturing facility, the plaintiff in Ocheltree was the sole female
employee in the group and we concluded:
Here, a reasonable jury could find that, taken together, the
various mannequin incidents, the vulgar song and picture,
and the graphic descriptions of sexual activity (especially
oral sex) that consistently painted women in a sexually sub-
10Although Jennings presses her claims against Palladino on appeal,
the record establishes no grounds on which his actions could be held to
have subjected her to a hostile environment based on her sex. Even the
dissent concludes that Jennings’ claims against Palladino fail as a matter
of law. Post at 57 n.3.
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servient and demeaning light were sufficiently severe or per-
vasive to alter the conditions of Ocheltree’s employment
and to create an abusive work environment. After a time,
Ocheltree was subjected every day to some variety of this
offensive conduct, which was humiliating to her personally
and to women in general. The harassment became so offen-
sive at times that it drove Ocheltree from the room. It surely
made it more difficult for her to do her job. A rational jury
could find that a reasonable person in Ocheltree’s situation
would regard the work environment at Scollon Productions
as abusive.
Ocheltree, 335 F.3d at 333; see also Spriggs v. Diamond Auto Glass,
242 F.3d 179, 184-86 (4th Cir. 2001)(considering both second-hand
harassment as part of the general environment (including daily racial
epithets) and an "incessant racial invective" targeted at plaintiff "indi-
vidually").
The record also indicates that Jennings’ teammates who engaged in
these conversations did not find the conversations offensive. See JA
320-31. Further, the comments hardly painted women in a sexually
subservient, negative, or demeaning light. Instead, according to Jen-
nings, the comments related to consensual sexual behavior that some
team members engaged in with their boyfriends or dates. Even if Dor-
rance encouraged and participated in these discussions, no evidence
indicates that the women participating in the conversations were
unwilling participants. In fact, Keller described the process of warm-
ing up before practice and the conversations that took place. Accord-
ing to Keller, some women were "wide open" about their personal
lives, others were in an intermediate group, and others were reserved.
JA 1053-56. Jennings acknowledges that she never participated in the
discussions. JA 1242-43, 1585.
As for once overhearing Dorrance and a male trainer use the phrase
"Asian threesome" at a water break during practice, Jennings admits
that neither the conversation nor the reference related to her or was
directed at her, and that she only heard Dorrance use that phrase one
time. At most, this comment is an offensive utterance.
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Without ignoring the background conversations mentioned above,
we now turn to conduct directed at the plaintiff during her two years
on the team. Jennings identifies three incidents. The primary incident
involves her one-on-one meeting with Dorrance while the team was
in California at the December 1996 Final Four. Dorrance told Jen-
nings that her grades were not acceptable, asked whether her social
life was affecting her grades, and then asked, "Who are you
f***ing?", and whether that was affecting her grades. Jennings
responded that her personal life was "none of his g** d*** business"
and Dorrance did not make any further inquiry about her sex life. A
second episode arose in which a teammate asked Jennings about a
visit with her boyfriend, and Dorrance, overhearing the conversation,
asked either "So, Trim’n[?]" or "yes, what about Trim’n?" Jennings
ignored the inquiries from her teammate and Dorrance and went to
the practice field. Finally, a teammate once asked Jennings whether
a man in the stands was her boyfriend and Dorrance allegedly was
present during the conversation but did not say anything.11
As phrased, Dorrance’s question in the hotel room clearly was
inappropriate. At the same time, as Jennings’ coach, Dorrance cer-
tainly had an interest in her academic performance and determining
whether her social life was contributing to her poor academic perfor-
mance. The question was not physically threatening and not a sexual
proposition. Rather, it was an offensive utterance from a coach to a
player in the context of inquiring about Jennings’ poor grades —
grades that were so poor that she believed her athletic eligibility was
in jeopardy. Moreover, her forceful rejection of Dorrance’s inquiry
undercuts the notion that his age and power (as her coach) trans-
formed this one question into a "severe" example of sexually harass-
ing behavior, such as a sexual assault or rape.12 Likewise, the
11Not even the dissent relies on this third incident. Rather, the dissent
focuses on two comments directed at Jennings during her two years on
the team. Post at 43.
12The dissent states that "[a] rational jury could find that Dorrance’s
question [in the hotel room in December 1996] constituted sexual harass-
ment, particularly in light of his pattern of asking many of his players the
same sort of question." Post at 53. We do not believe that this one ques-
tion in the hotel room transforms this case into one of those exceptional
cases where a single incident of sexual harassment, such as sexual assault
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"Trim’n" comment was nothing more than an offhand comment by
Dorrance as a follow-up to teasing from a teammate. As for the team-
mate’s inquiry about whether someone was Jennings’ boyfriend, Dor-
rance was simply a bystander and did not participate in that simple
teasing.
In analyzing this case, we do not ignore Dorrance’s role as a col-
lege soccer coach or the context in which this conduct occurred. We
are not examining the atmosphere in a typical university classroom
with a typical university instructor or even the atmosphere in a typical
workplace. Instead, we recognize that Dorrance (like many college
coaches) was in a different position vis-a-vis the women on the team
than a typical university instructor. 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 per-
formance, 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 suc-
cess with a high five or a hug. Likewise, some coaches will use pro-
fanity, slang, sarcasm, or hamhanded humor, or will yell at a player
or group of players to express displeasure, to make a point, or to moti-
vate. Such lapses in linguistic gentility do not necessarily equal a sex-
ually hostile educational environment. This is true whether the coach
is a woman coaching women, a man coaching men, a woman coach-
ing men, or a man coaching women.
or rape, has been deemed sufficient to raise a jury question. See supra
at 20-22 (analyzing Fourth Circuit precedent); see also Mendoza, 195
F.3d at 1244-52 (surveying Title VII sexual harassment cases from other
circuits). Indeed, the Supreme Court has stated that "[t]he ‘mere utter-
ance of an . . . epithet which engenders offensive feelings in an
employee’ does not sufficiently affect the conditions of employment to
implicate Title VII." Harris, 510 U.S. at 21 (quoting Meritor Savings
Bank, FSB, 477 U.S. at 67).
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At the same time, we realize that a college coach does have the
ability to control playing time, retention of a scholarship, or whether
a person remains on the team. We also realize that most college
coaches (as in this case) are going to be older than the men or women
that they coach.13 These factors do place the coach in a more powerful
position than the college athlete. The objective totality-of-the-
circumstances inquiry, however, allows a court to analyze all of these
factors in the context of whether a given coach-player interaction has
crossed the line separating "the merely vulgar and mildly offensive"
to "the deeply offensive and sexually harassing." Baskerville, 50 F.3d
at 431 (quotation omitted); see Oncale, 523 U.S. at 81.
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 edu-
cational 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 ath-
lete’s Title IX claim that her college coach created a hostile educa-
tional 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 sum-
mary judgment, the district court held that these actions did not "ap-
pear 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.
13Jennings was age 17 when she entered the University in August 1996
and age 19 when she was cut from the team in May 1998. See JA 1449.
Dorrance was age 45 to 47 during the relevant time period. See JA 804.
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Plaintiff cites a number of cases where courts have held that a jury
question existed as to the severity or pervasiveness of alleged harass-
ment, but those cases are easily distinguished. In Doe v. Green, 298
F. Supp. 2d 1025 (D. Nev. 2004), a 14-year-old high school student
was seduced into a sexual relationship with her coach. In Hayut v.
State University of New York, 352 F.3d 733 (2d Cir. 2003), a college
professor specifically directed comments at the plaintiff every week
in a university class. The student supposedly resembled Monica
Lewinsky, and the professor likened plaintiff to Monica Lewinsky in
class, referred to her as "Monica" almost every class period during the
entire semester, and repeatedly directed crude references at her both
in and out of class such as "I will give you a cigar later," and "How
was your weekend with Bill?" Id. at 738-39. The professor directed
these comments at the student during the Clinton-Lewinsky sex scan-
dal. Id.14 These cases are not analogous to the conduct at issue in this
case.
In light of our holding that the alleged conduct was not sufficiently
severe or pervasive to create a sexually hostile educational environ-
ment, we need not address the University’s argument that the conduct
was not because of plaintiff’s sex. Cf. Ocheltree, 335 F.3d at 331-32
(analyzing "because of sex" inquiry under Title VII); Bowman v.
Shawnee State Univ., 220 F.3d 456, 463-64 (6th Cir. 2000) (same).
Likewise, we need not address whether any cognizable basis exists to
impute liability to the University under Gebser and Davis. See Bay-
nard, 268 F.3d at 237 (discussing the Gebser/Davis standard).
14The dissent asserts that "[e]vidence that other players shared Jen-
nings’ humiliation and discomfort indicates that she was objectively rea-
sonable in finding Dorrance’s comments offensive and humiliating." Post
at 49-50 (citing Hayut, 352 F.3d at 747). The dissent then claims that
Hayut characterized "reactions of plaintiff’s peers [ ] as ‘significant to
the mandated objective analysis’ of whether conduct was sufficiently
severe to be actionable under Title IX." Id. at 50.
The dissent misreads Hayut. In Hayut, the court was discussing other
students’ reactions to the conduct that the professor directed at the plain-
tiff, not conduct that the professor directed at other students. Hayut, 352
F.3d at 747. Notably, the only evidence that Keller and Steelman testified
that Dorrance directed at Jennings was the Gatorade incident in Septem-
ber 1996. See JA 1072, 1156-57, 1453. As explained infra at 30-31, the
Gatorade incident is completely irrelevant to Jennings’ claims.
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D.
We acknowledge, but respectfully disagree with the dissent. In
many instances, the dissent relies on evidence that is not relevant to
Jennings’ claims or evidence that does not support Jennings’ claims
to the extent that the dissent suggests. We comment on a few.
The dissent incorrectly attempts to rely on large portions of Kel-
ler’s testimony in connection with Jennings’ claims. For example, the
dissent asserts that Keller testified that Dorrance "would make inap-
propriate sexual comments to players ‘anytime the team was
together,’ whether ‘on a plane, in a car, or on a bus, in a hotel, at prac-
tice, out of town, at events.’" Post at 40 (citing JA 1066). This asser-
tion is incorrect. Keller was asked, "Was there inappropriate conduct
other than at team time by Dorrance?" JA 1066. In response, she testi-
fied, "It could be, you know, when we’re out of town, on a plane, in
a car, or on a bus, in a hotel, at practice, out of town, at events, I mean
anytime the team was together." JA 1066 (emphasis added). Keller
was then asked, "And what was the inappropriate conduct that you
believe he engaged in?" JA 1067. Keller replied, "Just getting into
individuals’ personal lives of who they’re dating, who they’re sleep-
ing with, whether they’re sleeping with someone, whether they’re not,
how hung over they are, how much they’re drinking, any of - - all of
that." JA 1067. Keller was then asked for specific incidents. JA 1067.
She testified about two. JA 1068-71.
The first incident involved Dorrance allegedly telling Keller (when
they were alone together at a restaurant for lunch) that "he would die
to be a fly on the wall the first time that [Keller’s] roomate[, a fellow
player and born-again Christian,] had sex." JA 1068. The dissent
makes much of this comment in connection with Jennings’ claims,
but fails to mention that Dorrance allegedly made this comment to
Keller in the spring of 1994 — more than two years before Jennings
enrolled at the University. JA 1068. The dissent also states that "Kel-
ler relayed this comment to some players, including Jennings, to indi-
cate how stunned and appalled she was by it." Post at 41. However,
the record reflects that although Jennings said that Keller told her
about this spring 1994 conversation, Jennings did not testify when the
conversation with Keller occurred. JA 1237.
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The second incident involved Dorrance "joking around" at practice
and "making fun" "[of teammate A.F. who] was with more than one
person in one night." JA 1071. Keller was then asked, "What’s the
next thing you remember [Dorrance] doing that was inappropriate?
And we’re still talking about the team now." Id. Keller responded: "I
know. I mean it would just be more — I can’t — I mean it happened
more than once. The [A.F.] comment was probably the worst, but you
know, just comments about people’s individual lives at practice
would be what followed that. And then the other specific ones after
that I don’t — I can’t think of at the moment." JA 1071.
The dissent also cites Keller’s testimony for the proposition that
Dorrance "asked another player if she was ‘going to have sex with the
entire lacrosse team,’ and he advised another player ‘[Y]ou just have
to keep your knees together . . . you can’t make it so easy for them.’"
Post at 41 (citing JA 1127). The dissent, however, fails to note that
Keller did not testify that these comments were made during the one
year that Keller and Jennings were teammates (i.e., the 1996-97
school year)(see JA 1123-27) and fails to note that Jennings never tes-
tified that she heard these comments.
As for Keller’s specific testimony about Jennings, Keller was
asked, "What do you know of any inappropriate conduct that [Dor-
rance] had with Melissa Jennings?" JA 1071-72. Keller responded
that they were only teammates for one year and that "the only one that
I was told or was made aware of was an incident when I was captain
and he made her go withdraw money from a bank and use it for team
— it was after the hurricane, and use it to get the team water. We
were out warming up, because I was a senior at that time. And that’s
the only one I was made aware of." JA 1072. Later in her testimony,
Keller clarified that she did not witness this incident. Rather, Jennings
told her about the incident, either before or after they filed suit
together. JA 1156-57.
Although Keller testified that the incident involved water, the inci-
dent actually involved Gatorade. As to the Gatorade incident, the dis-
sent states that "Dorrance let Jennings know at the beginning of her
freshman year that she was within his sights. He singled her out in
front of the entire team, labeling her as ‘rich’ and ordering her to
withdraw $400 from her bank account to pay for a team supply of
30 JENNINGS v. UNIVERSITY OF NORTH CAROLINA

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Gatorade." Post at 48 (citing JA 1301-02). Whatever the propriety of
Dorrance’s conduct in connection with the Gatorade incident, Title IX
has nothing to do with alleged harassment based on wealth. Accord-
ingly, we view the Gatorade incident in September 1996 as com-
pletely irrelevant.
The dissent also claims that "Dorrance showed overt affection for
one player, Keller, in front of the entire team." Post at 41. In support
of this claim, the dissent cites, inter alia, Steelman’s declaration. Id.
Steelman’s declaration states that "[i]n the beginning, I observed
Anson Dorrance’s inordinate attention towards Debbie Keller. I
observed him touching her, particularly putting his arm around her
shoulder, dangling his hand in front of her chest. I observed him
touching her hair. I recall Debbie’s body language indicating strong
discomfort, frequently rolling her eyes and giving a grimaced look.
My observation was that the touching made Debbie unhappy and the
touching was not consented to." JA 1452-53.
Steelman was on the team in 1995 and 1996. JA 1451. Thus, "in
the beginning" means 1995 — a time period before Jennings joined
the team in August 1996. Further, the dissent fails to mention that
Jennings never testified to making the same alleged observation as
Steelman. Cf. JA 1290-91. In fact, not even Keller testified that Dor-
rance "dangl[ed] his hand in front of [Keller’s] chest."
Finally, as to Keller, the dissent states: "According to Jennings,
during one weight-lifting session when the players were lightly clad,
Dorrance called Keller over and walked her outside ‘towards the sta-
dium, putting his arms around her.’" Post at 41-42 (quoting JA 1432).
The record, however, reveals that Jennings described the weight room
incident as follows: "[W]e are in the weight room, [Debbie Keller]
goes off and talks with [Dorrance] in the bleachers." JA 1290.
The dissent also states that "A few players reacted tearfully [to
Dorrance’s comments at practice] saying, ‘I can’t believe him. Why
would he say that?’ or "I can’t believe he would say that. I never do
that." Post at 42 (citing JA 1239-41, 1269-71). The citation reference
is to Jennings’ opinion testimony about her teammates A.F. (JA 1239-
41) and S.D. (JA 1269-71). The A.F. reference relates to Dorrance’s
alleged comments at practice about A.F.’s sex life. The S.D. reference
31 JENNINGS v. UNIVERSITY OF NORTH CAROLINA

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relates to Dorrance’s alleged reference at practice to S.D.’s breasts
and her being top-heavy. JA 1269-71. In Jennings’ opinion, Dor-
rance’s comments upset A.F. (JA 1241-42) and S.D. (JA 1269-71).
A.F. and S.D. submitted affidavits denying that Dorrance ever
made any comments to them that were "unwelcome or inappropriate
within the context they were made and they were neither harsh, severe
nor frequent." JA 330; see also JA 321-23. A.F. also stated that
"Coach Dorrance never said anything to me which I considered to be
personally hurtful." JA 322. She continued: "I never knew of any of
my teammates to complain about Dorrance’s comments on their per-
sonal lives or state that his comments made them feel uncomfortable.
I myself felt extremely comfortable around . . . Dorrance." JA 323.
S.D. stated that "I was never offended by any comments that Dor-
rance made during these discussions or conversations." JA 331. Jen-
nings’ conclusory "opinion" and "[c]onclusory assertions" about the
state of mind of A.F. and S.D. are not enough to withstand summary
judgment. See Goldberg v. B. Green & Co., Inc., 836 F.2d 845, 848
(4th Cir. 1988).
The dissent states that "[a]s Jennings explained, many players
feared that ‘if they gave any sort of opposition [to Dorrance’s com-
ments] . . . [their] playing time [would be] gone, [their] career [would
be] gone.’" Post at 42-43 (quoting JA 1227). The dissent fails to state
that, in giving this opinion, Jennings failed to identify any player
(other than herself) who apparently has this alleged subjective fear.
Cf. JA 1226-28. Moreover, although Keller did reference a similar
subjective fear in her testimony, Keller admitted that she could not
think of one time during her four years on the team that Dorrance
made a decision about who would play based on things other than
their ability to contribute to the team’s victory and could not think of
one woman who Dorrance retaliated against because the woman
objected to or complained about his treatment. JA 1183-84.
The dissent also acknowledges that the banter at the beginning of
some practices (including Dorrance’s remarks) related to consensual
sexual activities of certain women on the team. Post at 48-49. The dis-
sent claims, however, that simply because Dorrance’s remarks did not
portray women as sexually subservient does not mean that "Dor-
rance’s remarks were no less degrading because of that." Post at 49.
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In support, the dissent cites a student note from the Rutgers Law
Review that allegedly surveyed "sociological and theoretical
research." Id. (citing Ann Marie Pinarski, When Coaches "Cross the
Line": Hostile Athletic Environment Sexual Harassment, 52 Rutgers
L. Rev. 911, 926-31 (2000)(hereafter "Pinarski, When Coaches Cross
the Line")).
The "sociological and theoretical research" cited in the student’s
Rutgers Law Review note consists of a description of the legal schol-
arship of "[f]eminist legal scholars who argue for a reconceptualiza-
tion of sexual harassment" due to "the inadequacies of the current
paradigm for evaluating sexual harassment claims." Pinarski, When
Coaches Cross the Line, 52 Rutgers L. Rev. at 924. The student note
then interprets the allegations against Dorrance "based on the inte-
grated feminist framework" described in the note. See id. at 931; see
also id. at 938-43.
We assume that the dissent is not relying on this "sociological and
theoretical research" for evidentiary purposes. After all, the research
was not cited by the parties in this court or the district court, the dis-
trict court had no opportunity to perform its "gatekeeping" function
in connection with the "research" under Fed. R. Evid. 702, and an
appellate court reviewing a grant of a motion for summary judgment
may examine only the evidence that was before the district court at
the time the ruling was made. See, e.g., Harrods Ltd. v. Sixty Internet
Domain Names, 302 F.3d 214, 242 (4th Cir. 2002); Katir v. Columbia
Univ., 15 F.3d 23, 25 (2nd Cir. 1994) (per curium); Welch v. Celotex
Corp., 951 F. 2d 1235, 1237 n.3 (11th Cir. 1992). Rather, we assume
that the dissent is citing the "research" in the student note to support
the notion that Dorrance’s alleged comments about consensual sexual
behavior "humiliated some of the women because it portrayed them
as being sexually promiscuous." Post at 49.
Notably, the dissent fails to cite testimony from any woman on the
team who felt such humiliation due to her alleged portrayal as promis-
cuous. Further, even though Jennings conducted extensive discovery
in this case, the record is devoid of such evidence. Indeed, the record
evidence is to the contrary. See J.A. 321-23. Thus, notwithstanding
the "sociological and theoretical research" cited in the dissent and the
student note, it is accurate to state that Dorrance’s comments and the
33 JENNINGS v. UNIVERSITY OF NORTH CAROLINA

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comments of Jennings’ teammates who engaged in these conversa-
tions hardly painted women in a sexually subservient, negative, or
demeaning light.
The dissent’s ultimate conclusion is that we "fail[ ] to confront the
gravity of the facts advanced by the Jennings." Post at 47-48. We
respectfully disagree. In accordance with Fourth Circuit precedent, we
acknowledge that even if Dorrance’s participation in conversations at
practice with other players constitutes harassment, such second-hand
harassment is less objectionable than harassment directed at the plain-
tiff. Further, it is the dissent that "fails to confront" (1) the undisputed
fact that Jennings’ evidence (beyond the alleged second-hand harass-
ment) consists of two verbal comments directed at her over two years
and (2) the legal consequences that flow from this lack of evidence.
See supra at 20-22 (analyzing Fourth Circuit precedent); see also
Mendoza, 195 F.3d at 1244-52 (surveying Title VII sexual harassment
cases from other circuits).
V.
Jennings seeks to hold Dorrance and Palladino liable for sexual
harassment under 42 U.S.C. 1983. Sexual harassment violates the
Fourteenth Amendment and is actionable under section 1983. See
Beardsley v. Webb, 30 F.3d 524, 529 (4th Cir. 1994). The Title VII
hostile work environment analytic framework applies to section 1983
sexual harassment claims. Id. at 529.
As mentioned, "[t]o establish a Title VII claim for sexual harass-
ment in the workplace, a female plaintiff must prove that the offend-
ing conduct (1) was unwelcome, (2) was based on her sex, (3) was
sufficiently severe or pervasive to alter the conditions of her employ-
ment and create an abusive work environment, and (4) was imputable
to her employer." Ocheltree, 335 F.3d at 331. Because Jennings has
failed to raise a genuine issue of material fact as to the third element
as to either Dorrance or Palladino, plaintiff’s section 1983 claim fails.
VI.
Jennings contends that the district court erred in granting summary
judgment on her claim brought under 42 U.S.C. § 1983 that Dorrance
34 JENNINGS v. UNIVERSITY OF NORTH CAROLINA

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violated a "constitutional zone of privacy" by asking her about her sex
life. (Appellant’s Opening Br. 34 (citing Whalen v. Roe, 429 U.S. 589
(1977).) In Whalen, the Court stated that its "cases sometime charac-
terized as protecting ‘privacy’ have . . . involved at least two different
kinds of interests. One is the individual interest in avoiding disclosure
of personal matters, and another is the interest in independence in
making certain kinds of important decisions." Whalen, 429 U.S. at
599-600 (footnotes omitted). Although Jennings argued below that
Dorrance violated both interests, on appeal Jennings proceeds only
under the disclosure prong. (Appellant’s Opening Br. 34-36); cf. Jen-
nings, 340 F. Supp. 2d at 676 (rejecting claims under either the inde-
pendent decision-making or informational privacy lines of cases).
Even if we accept plaintiff’s contention that the Supreme Court’s
"privacy" cases sometimes protect "avoiding disclosure of personal
matters," Whalen, 429 U.S. at 600, plaintiff appears to concede that
a forced disclosure is necessary under this theory. (See Appellant’s
Opening Br. 35.) Indeed, she principally relies on Thorne v. City of
El Segundo, 726 F.2d 459 (9th Cir. 1983), a case that involved a
police officer who was forced to disclose "information regarding per-
sonal sexual matters" and then not hired based in part on her prior
sexual activities. Id. at 468; accord Bloch v. Ribar, 156 F.3d 673,
683-85 (6th Cir. 1998) (being forced to reveal information regarding
sexual conduct may implicate the interest discussed in Whalen in
avoiding disclosure of personal matters); Eastwood v. Dep’t of Corr.,
846 F.2d 627, 631 (10th Cir. 1988) (same); Taylor v. Best, 746 F.2d
220, 225 (4th Cir. 1984) (compelling prisoners to answer questions
from prison psychologists may implicate their right under Whalen to
avoid disclosing personal matters).
Jennings’ claim fails because she was not forced to disclose any-
thing about her personal sexual conduct. In fact, she rebuffed Dor-
rance’s December 1996 question and that ended the matter. Jennings,
however, attempts to avoid the requirement of forced disclosure by
arguing that she refused to answer Dorrance’s question about her sex
life and he then cut her from the team in retaliation for refusing to tell
him about her sex life. (Appellant’s Opening Br. 36 ("Jennings [sic]
refusal to submit to Dorrance’s questioning led to her dismissal from
the team."); Appellant’s Reply Br. 21 ("Jennings’ refusal to submit to
this inquiry resulted in her removal from the team.").)
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Despite Jennings’ attempt to substitute "forced disclosure" with
"retaliation for refusing to disclose," she cannot escape two fatal facts.
No evidence of retaliation exists, and too much time elapsed between
the December 1996 meeting where Dorrance asked the question and
the May 1998 meeting where Dorrance cut Jennings from the team
for any rational jury to find that Dorrance cut Jennings from the team
because she refused to answer his question. See Causey v. Balog, 162
F.3d 795, 803 (4th Cir. 1998) (holding that "thirteen month interval
between the charge and termination is too long to establish causation
[under Title VII] absent other evidence of retaliation"). As such, the
district court properly entered summary judgment on this claim.
VII.
Jennings also brought a section 1983 claim against University
administrators Swofford, Baddour, Ehringhaus, Miller, and the
Hooker estate for failing to adequately supervise Dorrance and Pal-
ladino and therefore facilitating the violation of her statutory and con-
stitutional rights. "Supervisory officials may be held liable in certain
circumstances for the constitutional injuries inflicted by their subordi-
nates." Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994). To establish
such a claim under section 1983, the plaintiff must show:
(1) that the supervisor had actual or constructive knowledge
that his subordinate was engaged in conduct that posed a
pervasive and unreasonable risk of constitutional injury to
citizens like the plaintiff; (2) that the supervisor’s response
to that knowledge was so inadequate as to show deliberate
indifference to or tacit authorization of the alleged offensive
practices [ ]; and (3) that there was an affirmative causal link
between the supervisor’s inaction and the particular consti-
tutional injury suffered by the plaintiff.
Baynard, 268 F.3d at 235 (quoting Shaw, 13 F.3d at 799).
If no "injury" has taken place, then the plaintiff cannot satisfy ele-
ment three and the claim fails. Because neither Dorrance nor Pal-
ladino violated section 1983, the supervisory defendants cannot be
held liable for failing to stop a non-violation. See Klemencic, 263 F.3d
at 511.
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VIII.
Jennings sued Dorrance for invasion of privacy under North Caro-
lina law. She relies on the December 1996 question in the hotel room
and the "Trim’n" reference at practice. The district court granted sum-
mary judgment to Dorrance on plaintiff’s North Carolina invasion of
privacy claim. See Jennings, 340 F. Supp. 2d at 678.
Although the Supreme Court of North Carolina has not yet exam-
ined the contours of this specific privacy tort, the North Carolina
Court of Appeals has recognized the tort of invasion of privacy by
"intrusion into the seclusion, solitude, or private affairs of another."
Miller v. Brooks, 472 S.E.2d 350, 353 (N.C. Ct. App. 1996) (revers-
ing summary judgment for defendant on claim when separated wife
had private detective secretly install a video camera in plaintiff-
husband’s bedroom and routinely sorted through and discarded some
of plaintiff-husband’s mail without his permission or knowledge); see
Toomer v. Garrett, 574 S.E.2d 76, 90 (N.C. Ct. App. 2002) (reversing
dismissal of invasion of privacy tort claim when defendant viewed
and released information from plaintiff’s state personnel file without
permission). The North Carolina Court of Appeals defined the tort as
follows:
[O]ne who intentionally intrudes, physically or otherwise,
upon the solitude or seclusion of another or his private
affairs or concerns, is subject to liability to the other for
invasion of his privacy, if the intrusion would be highly
offensive to a reasonable person.
Miller, 472 S.E.2d at 354 (quotations and citation omitted).
"Generally, there must be a physical or sensory intrusion or an
unauthorized prying into confidential personal records to support a
claim for invasion of privacy by intrusion." Broughton v. McClatchy
Newspapers, Inc., 588 S.E.2d 20, 27 (N.C. Ct. App. 2003) (upholding
summary judgment for defendant when all of the information at issue
was public information). In addition, the conduct at issue "must be so
egregious as to be ‘highly offensive to a reasonable person.’" Id. at
28 (quoting Smith v. Jack Eckerd Corp., 400 S.E.2d 99, 100 (N.C. Ct.
App. 1991)). It is not enough that the conduct offended the plaintiff.
37 JENNINGS v. UNIVERSITY OF NORTH CAROLINA

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Smith, 400 S.E. 2d at 100 (affirming summary judgment for defendant
store where store alarm sounded as plaintiff left the store, the store
employee then searched plaintiff and her children with a scanner and
searched under plaintiff’s children’s coats).
In this case, Jennings testified that she refused to answer Dor-
rance’s question in the hotel room about her sex life and that Dor-
rance then moved to a different topic. Likewise, Jennings ignored
Dorrance’s "Trim’n" comment at practice. No private information
was disclosed in either incident. Cf. Toomer, 574 S.E.2d at 90; Miller,
472 S.E.2d at 353. Further, Dorrance’s question in the hotel and his
comment at practice do not rise to the level of egregious conduct
required under North Carolina law. See Smith, 400 S.E.2d at 100.
Accordingly, the district court properly granted summary judgment to
Dorrance on this claim.
IX.
Jennings moved to strike the defendants’ amended answer and for
an entry of default judgment because Dorrance allegedly made state-
ments during his deposition that contradicted the defendants’
amended answer. Specifically, in the amended answer Dorrance
denied making "lewd and degrading comments regarding other team
members in the presence of plaintiffs" (First Amended Complaint
¶ 19), but in his deposition, he testified that he could not recall
"whether [he] discussed sexual activity among the team players." JA
848. The district court denied the motion to strike, finding that the
two responses were "not clearly factually inconsistent" and that there
was no evidence of bad faith. Jennings, 340 F. Supp. 2d at 672.
Jennings also moved to strike exhibits C through H that were
attached to Dorrance’s affidavit. Jennings contends that these exhibits
were not properly authenticated and constitute inadmissible hearsay.
The district court concluded that these exhibits were properly authen-
ticated and qualified as records of regularly conducted activity under
Federal Rule of Evidence 803(6) and were therefore admissible. See
Jennings, 340 F. Supp. 2d at 672-73.
Jennings appeals the denial of both of these motions. We review
each decision under an abuse of discretion standard. See Supermkt. of
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Marlinton, Inc. v. Meadow Gold Dairies, Inc., 71 F.3d 119, 126 (4th
Cir. 1995); United States v. Shaffer Equip. Co., 11 F.3d 450, 462 (4th
Cir. 1993); Augusta Fiberglass Coatings, Inc. v. Fodor Contracting
Corp., 843 F.2d 808, 809 (4th Cir. 1988) (per curiam). Further, the
district court’s determination that there was no evidence of bad faith
and its factual findings underlying its evidentiary rulings are reviewed
under a "clear error" standard. See Evans v. Techs. Apps. & Serv. Co.,
80 F.3d 954, 962 (4th Cir. 1996); Hyatt v. Shalala, 6 F.3d 250, 255
(4th Cir. 1993).
We have reviewed the record and the district court’s reasoning. See
Jennings, 340 F. Supp. 2d at 671-73. The district court did not abuse
its discretion in refusing to strike the amended answer and enter a
default judgment and did not commit clear error in declining to find
bad faith. Likewise, even assuming the district court abused its discre-
tion in refusing to strike exhibits C through H to the Dorrance affida-
vit, those exhibits had no bearing on whether Jennings had
demonstrated the existence of a genuine issue of material fact on any
of her claims.
X.
For the foregoing reasons, the judgment of the district court is
affirmed.
AFFIRMED
MICHAEL, Circuit Judge, dissenting:
Melissa Jennings’s account must be taken as true: when she was
seventeen and a member of the women’s soccer team at the Univer-
sity of North Carolina at Chapel Hill (UNC or University), her forty-
five-year-old male coach, Anson Dorrance, persistently and openly
discussed and pried into the sex lives of his players, using what he
learned to degrade and humiliate them. The University, according to
Jennings’s evidence, knew about Dorrance’s conduct and failed to
take prompt action to stop it. These facts, as amplified in the summary
judgment record, entitle Jennings to a trial on her Title IX hostile
environment claim against UNC and her § 1983 claim against Dor-
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rance and Susan Ehringhaus, an official at UNC. See Title IX of the
Educational Amendments of 1972, 20 U.S.C. §§ 1681-1688; 42
U.S.C. § 1983. The majority affirms the district court’s grant of sum-
mary judgment to the defendants on the ground that Dorrance’s con-
duct was not sufficiently severe or pervasive to create an environment
hostile to women. But a thorough examination of the facts, viewed in
the light most favorable to Jennings, reveals that the majority has
failed to appreciate the force of her case. Because Jennings has prof-
fered facts showing that the soccer team environment was persistently
degrading and humiliating to her and to other young women, she is
entitled to a trial. I therefore respectfully dissent.
I.
A.
Jennings was a goalkeeper for the UNC women’s soccer team from
the beginning of her freshman year, August 1996, until she was cut
from the team at the end of her sophomore year, May 1998. As a
recruited walk-on, she had been personally recruited by head coach
Dorrance but had not been recommended for a scholarship. By all
accounts, UNC has long had the best women’s soccer program in the
country. Dorrance is the most successful women’s soccer coach in
college history, having won eighteen of the twenty-three national
championship games held through 2003. He has also coached the U.S.
Women’s National Team. According to Jennings, many girls would
"cut off their right arm to be at [UNC]" and play for Dorrance. J.A.
1227.
Jennings reports that Dorrance made sexual comments and inqui-
ries "on a regular basis" while she was a member of the team, from
the fall of 1996 through the spring of 1998. J.A. 1585. According to
Debbie Keller, Jennings’s teammate, Dorrance would make inappro-
priate sexual comments to players "anytime the team was together,"
whether "on a plane, in a car, or on a bus, in a hotel, at practice, out
of town, at events." J.A. 1066. Amy Steelman, another teammate, said
that a "typical Monday afternoon" included Dorrance "prying into our
sex lives" and sexual "exploits." J.A. 1452.
While Jennings was a team member, most of Dorrance’s sexual
talk occurred during "team time," when the players stretched and
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warmed up before practice. Dorrance joined "team time" once or
twice a week and frequently participated in and encouraged the play-
ers’ discussions about their sexual activities. Often using the word
"fuck," he asked lewd questions and made crude comments. Nearly
every day or every other day, he inquired of one player in front of the
entire team, "Who [her] fuck of the minute is, fuck of the hour is, fuck
of the week [is]," whether there was a "guy [she] ha[dn’t] fucked yet,"
and whether she "got the guys’ names as they came to the door or
whether she just took a number." J.A. 1236-38, 1261-62. He asked
another player if she was "going to have sex with the entire lacrosse
team," and he advised another, "[Y]ou just have to keep your knees
together . . . you can’t make it so easy for them." J.A. 1127. Of
another player, Dorrance inquired whether she was going to have a
"shag fest" when her boyfriend visited and whether she "was going
to fuck him and leave him." J.A. 1238, 1248. To still another, he
asked about the size of her boyfriend’s genitalia.
Dorrance told one player, Keller, that he would "die to be a fly on
the wall" the first time that her roommate, a fellow player and born-
again Christian, had sex. J.A. 1068. (Keller relayed this comment to
some players, including Jennings, to indicate how stunned and
appalled she was by it.) Once during a water break at practice, within
earshot of Jennings, Dorrance told a trainer that he fantasized about
having "an Asian threesome" with his Asian players. J.A. 1229, 1271,
1284-85.
During practice Dorrance regularly commented on players’ "nice
legs" and "nice racks" and about their "breasts bouncing." J.A. 393,
1229, 1233, 1236. He described how their "asses [looked] in spandex"
and how unbalanced or "top heavy" some players were. J.A. 1073,
1229, 1236. He regularly remarked on one player’s "dimples and . . .
cuteness," J.A. 1271, called one player "fat ass," J.A. 1276, and called
another "Chuck" because he suspected that she was a lesbian (her
name was Charlotte), J.A. 1228, 1281-82.
Dorrance showed overt affection for one player, Keller, in front of
the entire team. He frequently brushed her forehead, hugged her,
rubbed her back, whispered in her ear, and touched her stomach.
According to Jennings, during one weight-lifting session when the
players were lightly clad, Dorrance called Keller over and walked her
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outside "towards the stadium, putting his arms around her." J.A. 1432.
Steelman likewise observed Dorrance paying "inordinate attention" to
Keller, "putting his arm around her shoulder," "dangling his hand in
front of her chest," and touching her hair. J.A. 1452. Keller was
plainly troubled by Dorrance’s affection. Steelman observed Keller’s
"body language indicating strong discomfort . . . giving a grimaced
look." J.A. 1452-53. Keller herself confirmed that Dorrance’s cons-
tant touching "made [her] skin crawl" and made her "fe[el] dirty."
J.A. 1145. She did not protest, however, because she feared that Dor-
rance would retaliate by reducing or even eliminating her playing time.1
With his persistent comments and conduct, Dorrance created a
"sexually charged environment" that made Jennings feel "uncomfort-
able, filthy and humiliated." J.A. 1242, 1250, 1452. Dorrance’s com-
ments "all tie[d] together" from girl to girl to girl, putting Jennings in
constant fear that she would be his next target. J.A. 1250. As much
as she tried to stay out of Dorrance’s "radar," J.A. 1242, Jennings
could not escape the anxiety and discomfort that she felt and observed
in others. She witnessed other players become angry, disgusted, and
humiliated by Dorrance’s sexual questions and remarks during warm-
up or at team gatherings. A few players reacted tearfully, saying, "I
can’t believe him. Why would he say that?", or "I can’t believe he
would say that. I never do that." J.A. 1239-41, 1269-71. One player
often left practice in tears. Nonetheless, many players feared com-
plaining directly to Dorrance because, as their coach, he controlled
positions, playing time, and scholarship eligibility. As Jennings
explained, many players feared that "if they gave any sort of opposi-
1The majority points out that Jennings and Keller were teammates for
only one year, ante at 30, and that Steelman joined the team a year before
Jennings did, id. at 31. These timing circumstances, the majority argues,
render irrelevant any parts of Keller’s and Steelman’s testimony that
recount Dorrance’s sexual harassment during the period leading up to
August 1996, when Jennings joined the team. This testimony, however,
is relevant proof of the (sex-based) hostile environment into which Jen-
nings was introduced. See Rodgers v. Western-Southern Life Ins. Co., 12
F.3d 668, 674 (7th Cir. 1993) (stating that the factfinder may consider
"the lexicon of obscenity that pervaded the environment of the workplace
both before and after the plaintiff’s introduction into its environs"). In
any event, much of Jennings’s evidence concerns harassment that
occurred in her presence during her two years on the team.
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tion . . . [their] playing time [would be] gone, [their] career [would
be] gone." J.A. 1227. By this, she meant not just any soccer career,
but a career with the nation’s top collegiate team.
Jennings "dodged [Dorrance’s] bullet a couple times." J.A. 1251-
52. But not every time. Dorrance twice targeted Jennings with sexual
questions and innuendos. At a tournament in California in fall 1996,
at the end of Jennings’s freshman season, Dorrance held one-on-one
meetings with players in his hotel room to assess their season perfor-
mance (conditioning, skills, contribution to team chemistry, and aca-
demic status). Dorrance told Jennings that she was in danger of losing
her eligibility to play soccer if her grades did not improve. In the
midst of this discussion, Dorrance asked Jennings, "Who are you
fucking?" J.A. 1326, 1330. Jennings replied that it was "[n]one of his
God damn business" what she did off field. J.A. 1325. As Jennings
described the scene, "I was 17 when he asked me ["Who are you
fucking?"] in a dark hotel room, knee-to-knee, bed not made, sitting
at one of those tiny tables." J.A. 1230. She felt acutely uncomfortable.
Dorrance’s second sexual comment to Jennings came during a
warm-up session in her sophomore year (1997-98). Certain players
and Dorrance were inquiring about and discussing one player’s recent
weekend (called a "shag fest" by Dorrance, J.A. 1248), which ended
with a young man crawling out of her window. Jennings had spent
that same weekend visiting her boyfriend off campus. Inevitably, as
the crude discussion progressed, one player piped up (using Jen-
nings’s nickname), "Well, what about Trim’n?" J.A. 1246. Dorrance
immediately "chimed in," saying "Yes, what about Trim’n?" J.A.
1248, 1252. Dorrance thereby encouraged the interrogation about per-
sonal sexual activity to "slide over" to Jennings. J.A. 1249. She felt
humiliated and did not respond.
B.
In the fall of 1996, during her freshman year, Jennings notified the
University about the sexually hostile environment that Dorrance had
created inside the women’s soccer program. Sometime between Sep-
tember and November of that year, Jennings met with Susan Ehr-
inghaus, the University’s General Counsel and Assistant to the
Chancellor, to discuss her complaints about Dorrance. Jennings chose
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to meet with Ehringhaus because Ehringhaus was a woman and "had
presented herself as being okay and [having] open doors to talk." J.A.
1338. Jennings "gave [Ehringhaus] a [complete] run-down" of Dor-
rance’s sexual comments at practice. J.A. 1343. She reported that his
conduct rendered the women’s soccer environment "humiliating [and]
uncomfortable" for her. J.A. 1342. Ehringhaus dismissed these con-
cerns, suggesting that Jennings simply "work it out" with Dorrance.
J.A. 1341, 1343. As Jennings puts it, "[Ehringhaus] basically just
gave me the sugar coating, [saying] ‘[Dorrance] is a great guy. I’ve
known him for a long time,’ [and with that, she] shoved me out the
door." J.A. 1342.
Dorrance cut Jennings from the team during exams at the end of
her sophomore year (May 1998), citing her inadequate fitness. Over
the next several days, Jennings’s parents telephoned and wrote the
Chancellor’s office to complain about Dorrance’s questions and com-
ments about players’ sexual activities. In due course, Richard Bad-
dour, the Director of Athletics, conducted an administrative review
pursuant to UNC’s sexual harassment policy. Ehringhaus, Baddour,
and another University official met with Jennings, her father, and
Dorrance around May 26, 1998, when the Jenningses reiterated their
complaints about Dorrance’s participation in and encouragement of
the players’ conversations about sex. Dorrance admitted participating
in group discussions about players’ sexual activities, but claimed that
his comments were only "of a jesting or teasing nature." J.A. 1404,
1531. He later admitted in deposition that it would be "entirely inap-
propriate" for him as a male coach to discuss with any woman player
her sexual activity unless she herself raised the topic to seek his
advice and "she was doing something that was hurting her." J.A. 838-
39.
The administrative review ended with athletic director Baddour
sending a letter of apology to Mr. Jennings and a brief, mild letter of
reprimand to Dorrance. On June 9, 1998, Baddour wrote to Mr. Jen-
nings apologizing for Dorrance’s "inappropriate . . . involvement in
[sexual] discussions" with his team members. J.A. 1531. Baddour
assured Mr. Jennings that "[a]ppropriate interventions ha[d] occurred
with Coach Dorrance to address these unacceptable conversations."
Id. Dorrance indicated his own apology by counter-signing the letter.
One day later, Baddour wrote to Dorrance declaring it "inappropriate
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for [Dorrance] to have conversations with members of [the] team
(individually or in any size group) regarding their sexual activity."
J.A. 1533.
C.
In August 1998, at the start of Jennings’s third year at UNC, Jen-
nings and Keller brought a single action against the University and
several individual defendants, including Dorrance and Ehringhaus,
asserting (among others) claims under Title IX and § 1983. After the
lawsuit was filed, Jennings was threatened and harassed on the UNC
campus. One former teammate cursed at and physically threatened her
with a lacrosse stick, an incident that she reported to the UNC Public
Safety Office. Every night she received harassing and threatening
phone calls until the "wee hours" from anonymous university num-
bers. J.A. 1267. University officials warned Jennings that they could
not guarantee her safety on campus and encouraged her to take com-
parable classes at another university, promising that her credits could
be transferred to UNC. Jennings completed her third year at UNC but
transferred to Northern Illinois University for her final year. Keller
settled her claims and took a dismissal with prejudice. Jennings’s case
proceeded to the entry of summary judgment in favor of the defen-
dants. That judgment should be vacated to allow Jennings’s Title IX
and § 1983 claims to proceed.
II.
I will first explain why Jennings is entitled to a jury trial on her
Title IX claim against UNC. Title IX prohibits sex-based discrimina-
tion by educational institutions that receive federal funds. The statute
provides that "[n]o person . . . shall, on the basis of sex, be excluded
from participation in, be denied the benefits of, or be subjected to dis-
crimination under any education program or activity receiving Federal
financial assistance." 20 U.S.C. § 1681(a). Title IX, which is pat-
terned on Title VII of the Civil Rights Act of 1964, prohibits sexual
harassment that creates a hostile educational environment. Hayut v.
State Univ. of New York, 352 F.3d 733, 750 (2d Cir. 2003). To estab-
lish such a claim, the plaintiff must prove that (1) she was a student
at an educational institution receiving federal funds, (2) who was sub-
jected to harassment (3) based on her sex; (4) the harassment was suf-
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ficiently severe or pervasive to create a hostile (or abusive)
educational environment; and (5) there is a basis for imputing liability
to the institution. Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 66
(1st Cir. 2002).
A.
The majority concentrates on the hostile environment element and
erroneously concludes that Jennings has not proffered adequate facts
to raise a triable issue as to whether Dorrance’s discussions (in team
settings) about the sexual activities of the young women on his soccer
team were sufficiently severe or pervasive to create a hostile environ-
ment. I recognize, of course, that the "severe or pervasive" element
has an objective component: the environment must be regarded as
hostile to a reasonable person in the victim’s position. See Faragher
v. City of Boca Raton, 524 U.S. 775, 787 (1998); Ocheltree v. Scollon
Prods., Inc., 335 F.3d 325, 333 (4th Cir. 2003) (en banc). In addition,
Title IX, like Title VII, is not a general civility code. See ante at 19.
Nevertheless, Title IX protects a student from an educational environ-
ment that is permeated with sex-based degradation, insult, ridicule,
and intimidation. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21
(1993); Ocheltree, 335 F.3d at 333.
The majority dutifully catalogs a number of Title VII and Title IX
cases analyzing whether conduct is sufficiently severe or pervasive to
create an objectively hostile environment. See ante at 16-24. The con-
duct analyzed in these cases runs the gamut from merely unpleasant
comments to physical touching and threats of rape. Compare Hartsell
v. Duplex Prods., Inc., 123 F.3d 766, 768-73 (4th Cir. 1997) (affirm-
ing summary judgment in employer’s favor on ground that employ-
er’s statements to plaintiff, including that "[w]e’ve made every female
in this office cry like a baby" and that she should "go home and fetch
[her] husband’s slippers like a good little wife," constituted "mere
unpleasantness" not actionable under Title VII), with Anderson v.
G.D.C., Inc., 281 F.3d 452, 456-59 (4th Cir. 2002) (reversing sum-
mary judgment on ground that plaintiff’s allegations that supervisor
"barraged" her with daily comments about her breasts and buttocks,
threatened to rape her, and pressed his penis against her buttocks were
"unquestionably sufficient" to submit to a jury). These cases simply
confirm that hostile environment analysis "is not, and cannot be [ame-
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nable to] a mathematically precise test." Harris, 510 U.S. at 22.
Rather, what differentiates mere unpleasantness from actionable
(severe or pervasive) harassment depends largely on factual context,
that is, the "constellation of surrounding circumstances, expectations,
and relationships . . . including, but not limited to, the ages of the
harasser and the victim." Davis v. Monroe County Bd. of Ed., 526
U.S. 629, 651 (1999) (citing Oncale v. Sundowner Offshore Servs.,
Inc., 523 U.S. 75, 82 (1998)). The "severe or pervasive" inquiry thus
examines the "totality of the circumstances," including the frequency
and severity of the conduct, its impact in terms of humiliation or
threat, and its degree of interference with the victim’s educational
pursuits. See Harris, 510 U.S. at 23.
B.
The facts proffered by Jennings, when viewed in the light most
favorable to her, raise a genuine issue of material fact as to whether
Dorrance’s conduct was sufficiently severe or pervasive to create a
sexually hostile environment. The majority, in concluding otherwise,
fails to heed the basic rule for reviewing a summary judgment: "The
evidence of the non-movant [here, Jennings] is to be believed, and all
justifiable inferences are to be drawn in [her] favor." Anderson v. Lib-
erty Lobby, Inc., 477 U.S. 251, 255 (1986). Moreover, the majority
attempts to brush aside what happened as mere unpleasantness and
vulgarity. Jennings, according to the majority, was simply a bystander
to her fellow teammates’ sexual and social banter, and Dorrance’s
participation — even if it constituted harassment — was only
"second-hand harassment . . . [that is] less objectionable." Ante at 23.
But see Jackson v. Quanex Corp., 191 F.3d 647, 660 (6th Cir. 1999)
("[O]ffensive comments need not be directed at a plaintiff in order to
constitute conduct violating Title VII."). The majority fails to con-
front the gravity of the facts advanced by Jennings. She was not a
mere bystander who was unaffected by Dorrance’s comments. Rather,
she was caught in a hostile environment that was demeaning to young
women. See Spriggs v. Diamond Auto Glass, 242 F.3d 179, 184 (4th
Cir. 2001) (noting that it is important to consider evidence of general
atmosphere when evaluating hostile environment claim); Walker v.
Ford Motor Co., 684 F.2d 1355, 1359 n.2 (11th Cir. 1982) ("The fact
that many of the epithets were not directed at [plaintiff] is not deter-
minative. The offensive language often was used in [his] presence"
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and created an environment "heavily charged" with discrimination.)
(internal quotation marks and citation omitted). Dorrance’s sex-based
verbal abuse permeated the atmosphere and at times homed in on Jen-
nings. See Harris, 510 U.S. at 21-22 (citing Meritor Sav. Bank, FSB
v. Vinson, 477 U.S. 57, 65-67 (1986)).
Dorrance let Jennings know at the beginning of her freshman year
that she was within his sights. He singled her out in front of the entire
team, labeling her as "rich" and ordering her to withdraw $400 from
her bank account to pay for a team supply of Gatorade. J.A. 1301-02.
She was in perpetual fear that Dorrance would inevitably direct his
"filthy comments" at her, as he shifted his focus from one girl to the
next to the next. J.A. 1242-43, 1250. His comments and questions "all
tie[d] together," J.A. 1250, as he pried into players’ sexual activities
and exploits and made graphic remarks about their "racks" and "asses
in spandex," J.A. 1229. It was as if his comments were a soccer ball,
passed from one player to the next, with Jennings the goalkeeper con-
stantly bracing to block a shot that would surely come at her.
Jennings tried hard to "stay out of [Dorrance’s] radar" and thereby
avoid his probing and indecent comments. J.A. 1242. She avoided the
young women who were Dorrance’s "main targets" and refused to
respond when he inquired about her weekend with her boyfriend
while he (Dorrance) was discussing another player’s weekend "shag
fest." J.A. 1250. But she could not avoid this environment altogether
without skipping warm-up, practice, and other team gatherings. She
could not dictate which players Dorrance targeted and when. Jennings
was always within Dorrance’s range and reasonably feared being his
next target, a fear that materialized when he asked "Who are you
fucking?," J.A. 1330, and "What about Trim’n?," J.A. 1252.
Moreover, Dorrance’s remarks were not made any less offensive
because they related to consensual sexual activities. The majority con-
cludes that the remarks "hardly painted women in a sexually subservi-
ent, negative, or demeaning light." Ante at 24. Comments can be
sexually hostile and abusive regardless of whether they portray
women as sexual prey or as sexual predators, as sexually subservient
or as sexually dominant. Asking a player who her "fuck-of-the-hour"
is, or whether she knows the names of her many conquests or just
takes numbers, is disrespectful, degrading, and abusive — especially
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coming from a much older and more powerful male coach. J.A. 1223.
These questions, although focused on consensual sex, nonetheless
humiliated some of the women because it portrayed them as being
sexually promiscuous. Indeed, on some (albeit rare) occasions, Dor-
rance would go so far as to call a player a "slut" in front of the team.
J.A. 1251. While not always portraying women in a "sexually subser-
vient . . . light," ante at 23-24, Dorrance’s remarks were no less
degrading because of that. See generally Annmarie Pinarski, When
Coaches "Cross the Line": Hostile Athletic Environment Sexual
Harassment, 52 Rutgers L. Rev. 911, 926-31 (2000) (surveying socio-
logical and theoretical research). A reasonable jury could find that
Dorrance’s constant comments and questions about consensual sex
contributed to a hostile environment.
Jennings was not alone in finding Dorrance’s remarks offensive,
although the majority contends otherwise. While some teammates
were "wide open" about their personal lives and sexual activities, oth-
ers were less vocal and more reserved, preferring total privacy in
these areas. J.A. 1053-54. Steelman was "shocked" that Dorrance
encouraged and instigated the discussions about sex; she felt "very
uncomfortable with his sexually charged environment," and she
"would frequently [go] home crying as a result." J.A. 1452. Dor-
rance’s comments visibly upset and angered other players as well.
One, who was constantly portrayed by Dorrance as sexually promis-
cuous, would say through tears, "What the hell is [Dorrance] doing
saying that?" and "I can’t believe he would say that. I never do that."
J.A. 1239. Still another cried because Dorrance focused on her breasts
(her "rack," as he put it), saying that she "[could]n’t believe him." J.A.
1270.2 Evidence that other players shared Jennings’s humiliation and
2The majority argues that Jennings is simply offering "opinion testi-
mony" when she discusses the preceding two players, identified by the
majority as A.F. and S.D., who were upset by Dorrance’s comments.
Ante at 31. Jennings’s testimony, however, includes accounts of these
players’ physical reactions. One "didn’t look happy" and cried when she
discussed Dorrance’s repeated claims that she was promiscuous. J.A.
1241-42. The other had a "disgusted look . . . an upset look on her face"
when she expressed incredulity at Dorrance’s remarks about the size of
her breasts. J.A. 1271. Although these two players have since signed affi-
davits saying that Dorrance never made unwelcome or offensive com-
ments to them, there is nevertheless a material factual issue about their
reactions at the time in question.
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discomfort indicates that she was objectively reasonable in finding
Dorrance’s comments offensive and humiliating. Cf. Hayut, 352 F.3d
at 747 (characterizing reactions of plaintiff’s peers to conduct directed
at plaintiff as "significant to the mandated objective analysis" of
whether conduct was sufficiently severe to be actionable under Title
IX).
Moreover, just because some of the young women willingly and
openly discussed their sexual activities among themselves does not
mean they were comfortable having those discussions with Dorrance.
Contrary to the majority’s suggestion, there is nothing "telling" about
the fact that Jennings "does not appear to object to some of her team-
mates talking about their sex lives." Ante at 23. What is telling is that
she objects to Dorrance’s constant and open discussion about the
players’ sex lives. Dorrance was not simply one man outnumbered by
twenty-six women. He was a forty-five year-old man probing into the
sexual activities of young women, some of whom, like Jennings, were
as young as seventeen. As the coach, he controlled everything: team
membership, scholarship eligibility, playing position, and playing
time. He was in fact more than a regular college coach; he was and
still is the most successful women’s soccer coach in U.S. history and
a former national team coach. As such, he exercised tremendous
power over his players’ soccer careers at UNC and beyond.
The players were acutely aware of Dorrance’s power and feared his
punishment should they complain. Even though some players felt dis-
comfort, humiliation, or disgust because of Dorrance’s conduct, they
were afraid to object. As Jennings put it, "[H]ow do you say anything
[to stop him]." J.A. 1290. "If you are submissive, you are fine," J.A.
1227, but if you are not, "[y]our career goes — you . . . lose your
playing time. You are stuck between a rock and a hard place." J.A.
1290. According to Keller, Dorrance’s affectionate touching and
questioning about sex "made [her] skin crawl" and made her "fe[el]
dirty," J.A. 1145, yet she "didn’t want to tick him off to a point . . .
where he would take it out on [her] by not playing [her]." J.A. 1120.
Keller thus "felt the pressure" to give in to some degree and answer
some of Dorrance’s vulgar questions. J.A. 1120.
The unequal power relationship between Dorrance and his players,
and his ability to punish players who were not submissive, serve to
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make his comments about sex all the more severe and hostile. See
Davis, 526 U.S. at 653 (noting that relationship between harasser and
victim necessarily affects whether conduct creates a hostile environ-
ment in violation of Title IX); Crandell v. New York Coll. of Med.,
87 F. Supp. 2d 304, 319 (S.D.N.Y. 2000) (denying summary judg-
ment motion in part because "unequal power relationship" between
harasser and victim could support a jury finding of sexually hostile
environment). The majority discounts this power differential by sug-
gesting that the more encompassing, "more informal [or] casual" rela-
tionship between a college coach and his athletes may serve to
prevent the coach’s profanity, touching, and personal questions from
"cross[ing] the line separating ‘the merely vulgar and mildly offen-
sive’ [and] ‘the deeply offensive and sexually harassing.’" Ante at 26,
27; see also ante at 26 (stating that "[w]e are not examining the atmo-
sphere in a typical university classroom with a typical university
instructor or even the atmosphere in a typical workplace").
It is true that college coaches spend long hours (even time on the
road and in hotels) with their athletes, become involved in matters
personal to the athletes from diet to restrictions on social life, engage
in "hands-on" demonstrations in practice, massage stiff or injured
muscles, and celebrate by exchanging high-fives and hugs. See ante
at 26. Indeed, coaches and athletes can spend over a third of their
waking hours together, including one-on-one contact and hours of
unstructured "downtime" that fosters familiarity and close relation-
ships. Nancy Hogshead-Makar & Sheldon Elliot Steinbach, Intercol-
legiate Athletics’ Unique Environments for Sexual Harassment
Claims: Balancing the Realities of Athletics with Preventing Potential
Claims, 13 Marq. Sports L. Rev. 173, 176-77 (2003). This more infor-
mal atmosphere can, as the majority suggests, serve to normalize con-
duct, such as cursing or touching, that would be inappropriate in the
more formal setting of the classroom or office. On the other hand, the
same informal sports setting, coupled with the coach’s intensely per-
sonal yet authoritative relationship with his athletes, may enhance the
potential for sexual harassment. See, e.g., id. (noting that a coach’s
"special authority" over athletes and frequent one-on-one contact
"amplify the potential for harassment").
Jennings proffers facts that, if believed, show that Dorrance took
advantage of the informal atmosphere as well as his position of power
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to cross over from routine teasing into real sexual harassment. Dor-
rance developed an intensely close and controlling relationship with
many of his athletes. Part of this control was knowing the intimate
and even humiliating details of his players’ lives. According to Jen-
nings, Dorrance knew about his players’ sexual relationships and
"kn[ew] who does drugs . . . who has the drinking problems . . . who
has the eating disorder. And if you don’t support him, then he holds
it over your head. [He] is very manipulative." J.A. 1223. He held him-
self out as a "father figure," encouraging his players to confide in him
fully. J.A. 1325. Yet in return he asked questions of the sort that
fathers do not typically ask: "Who are you fucking?" or "Who is your
fuck of the hour?" J.A. 1223, 1330. As Keller put it, "It’s just kind
of sick [that] . . . someone that you think is more of a father figure
to you [is] telling you they want to watch your friend have sex." J.A.
1069. Dorrance would gain his players’ trust only to exploit or betray
it later, humiliating them one-on-one or in front of teammates.
In this sexually charged atmosphere, Dorrance’s comment to a
trainer that he wanted to have an "Asian threesome" with two Asian
players was particularly troubling to Jennings. It revealed that Dor-
rance had more on his mind than simply teasing or jesting with his
players. It confirmed that he saw at least some of them as sexual
objects. The comment exacerbated Jennings’s otherwise reasonable
anxiety over whether and when she would be Dorrance’s next target
for a degrading question or comment.
Jennings’s turn came during a fall 1996 tournament, when Dor-
rance met with her one-on-one in his dim hotel room, bed unmade,
and asked her, "Who are you fucking?" As her coach, Dorrance was
certainly free to inquire into Jennings’s general social life and how
she managed her time, especially because he was concerned about her
grades. But this question had no legitimate place in the inquiry. Its
aggressive tone, combined with the setting (alone in confined quar-
ters) and the overall circumstances (Dorrance’s pattern of sexually
aggressive questioning and his power over his players) served to
intensify an already hostile environment regarding matters of sex.
The majority suggests that Jennings’s forceful reply relegated Dor-
rance’s question to the benign "inappropriate" category. It concludes
that Jennings’s response, "None of [your] God damn business," J.A.
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1331, "undercuts the notion that [Dorrance’s] age and power (as her
coach)" put the question in the sexual harassment category. Ante at
25. Jennings’s response did not equalize the power imbalance, how-
ever. Dorrance was still her older male coach, the one who controlled
her team membership and playing time; Jennings was still his subor-
dinate, "taken [a]back" by his intrusive question and feeling "very
uncomfortable" and eager to end the inquiry. J.A. 1331. Her response
indicated her indignation and discomfort. It did not neutralize Dor-
rance’s offense or immunize his conduct. A rational jury could find
that Dorrance’s question constituted sexual harassment, particularly in
light of his pattern of asking many of his players the same sort of
question.
In sum, Jennings has proffered sufficient facts for a jury to find that
Dorrance’s conduct was sufficiently severe or pervasive to create a
sexually hostile environment. First, at least once or twice a week
when the soccer team was together, Dorrance would get involved in
—- and encourage —- discussions about his players’ sex lives. Sec-
ond, Dorrance himself regularly made indecent and inappropriate
comments. In front of the team he constantly asked certain players
questions, such as: Who is your "fuck of the minute"? J.A. 1237.
"[Are you] going to have sex with the entire lacrosse team?" J.A.
1127. Are you going to have a "shag fest" when your boyfriend visits?
J.A. 1248. Are you "going to fuck him and leave him"? Id. Dorrance’s
constant and vulgar prying into his players’ sexual activities made
several of them uncomfortable, on occasion driving them to tears.
Nonetheless, these players often felt pressured to answer his questions
and endure his comments without protest, fearing that any other
course would provoke some form of retaliation from him. Third, Dor-
rance displayed overt affection for one player and told her that he
would like to be a "fly on the wall" the first time her roommate (and
teammate) had sex. J.A. 1069. He told a trainer (in a conversation
overheard by Jennings) that he would like to have group sex with his
two Asian players. Fourth, Dorrance manipulated his players’ trust.
He portrayed himself as a father figure, encouraging them to confide
in him about all aspects of their lives. Yet he often misused personal
information to degrade and humiliate a player in front of the entire
team. Fifth, in light of this atmosphere Jennings had every reason to
believe that she would become the target of Dorrance’s inappropriate
attention. When Jennings did get the question, "Who are you fuck-
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ing?", it was still another piece of Dorrance’s pattern of harassment.
In short, there is easily a jury question here.
C.
Jennings either presents facts sufficient to establish or to raise a
jury question on the other elements or sub-elements of her Title IX
claim. First, it is undisputed that she was a student at UNC, an institu-
tion receiving federal funds. Second, Jennings proffers evidence that
Dorrance’s persistent subjection of the young women to talk about
sexual matters (the discrimination or harassment) was based on their
sex (done because they were women). Dorrance claimed to be the
young women’s "father away from home," J.A. 1329, yet exploited
their trust by prying into their sex lives in team settings and using
what he learned to demean them because of their sex. See Ocheltree,
335 F.3d at 331-33 (concluding that it was reasonable for jury to find
that harassment was "because of sex" because conduct was "intended
to provoke [plaintiff’s] reaction as a woman," that is, to make her
uncomfortable and self-conscious because of her sex). Third, Jennings
testifies that Dorrance’s conduct caused her severe discomfort and
emotional distress that in turn caused her grades to suffer and had a
negative impact on her participation in the women’s soccer program.
This testimony, when combined with the evidence of her substandard
grade point average, creates a triable issue of fact as to whether Dor-
rance’s conduct unreasonably interfered with her educational progress
and soccer participation. See, e.g., Holtz v. Rockefeller & Co., Inc.,
258 F.3d 62, 76 (2d Cir. 2001) (finding that plaintiff’s testimony that
"it [was] almost impossible for [her] to do [her] work without getting
upset" created triable issue of fact regarding unreasonable interfer-
ence).
Fourth, Jennings provides a basis for imputing liability to UNC for
Dorrance’s conduct. She proffers evidence that the school had actual
notice of the discrimination and made an inadequate response. See
Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998). In
particular, Jennings’s facts show that University officials with author-
ity to address the discrimination and to institute corrective measures
had actual knowledge of Dorrance’s misconduct and acted with delib-
erate indifference toward it, effectively causing the discrimination.
See Baynard v. Malone, 268 F.3d 228, 237 (4th Cir. 2001) (citing
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Gebser, 524 U.S. at 290)). A reasonable jury could conclude that Ehr-
inghaus, the University’s highest-ranking lawyer and an official
responsible for fielding sexual harassment complaints, received actual
notice of Dorrance’s misconduct during her fall 1996 meeting with
Jennings. Further, a jury could find that Ehringhaus acted with delib-
erate indifference by insisting that Dorrance was a "great guy" and
then "shov[ing] [Jennings] out the door." J.A. 1342. Ehringhaus’s
only response — suggesting that Jennings "work it out" with Dor-
rance — was patently inadequate. J.A. 1341. Jennings chose to meet
with Ehringhaus precisely because she did not feel comfortable talk-
ing with Dorrance about his harassment. Indeed, the University’s sex-
ual harassment policy encourages a student to "resolve the matter
with the administrative official most directly concerned, excluding the
person accused of sexual harassment." J.A. 924 (emphasis added).
Pushing Jennings back toward Dorrance thus appears "clearly unrea-
sonable in light of the known circumstances," which amounts to
deliberate indifference. Hayut, 352 F.3d at 751 (citing Davis, 526
U.S. at 648) (internal quotation marks and additional citation omit-
ted). The University’s ultimate reprimand of Dorrance, which came
roughly a year and one-half later, would also allow a rational jury to
find deliberate indifference because the reprimand "only follow[ed]
after a lengthy and unjustified delay." Id. (internal quotation marks
and citation omitted).
Jennings has proffered sufficient facts to meet each element of her
Title IX claim against the University. This claim should therefore sur-
vive summary judgment.
III.
Jennings has triable § 1983 claims against Dorrance and Ehr-
inghaus premised on her Fourteenth Amendment equal protection
right to be free from sexual harassment in educational settings. See
Hayut, 352 F.3d at 743-44. Here, as to Dorrance, Jennings must show
that his harassment was "because of sex" and was sufficiently severe
or pervasive to interfere unreasonably with her educational progress
or activities. See, e.g., Beardsley v. Webb, 30 F.3d 524, 527-29 (4th
Cir. 1994); Hayut, 352 F.3d at 743-49. Jennings satisfies these
requirements for the reasons mentioned in my discussion of her Title
IX claim. To make out her § 1983 claim, Jennings must also show
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that Dorrance was acting "under color of law" at the time that he
harassed his women soccer players. Holland v. Rimmer, 25 F.3d
1251, 1256 (4th Cir. 1994). "‘State employment is generally sufficient
to render the defendant a state actor,’" and a defendant in a § 1983
suit necessarily "acts under color of state law when he abuses the
position given to him by the State." West v. Atkins, 487 U.S. 42, 49-
50 (1988) (quoting Lugar v. Edmonson Oil Co., 457 U.S. 922, 936
n.18 (1982)). As a coach employed at a state university, Dorrance
enjoyed great authority over his student athletes with respect to team
membership, scholarship eligibility, and playing time. If he misused
this authority, he necessarily acted under color of law for purposes of
§ 1983. See, e.g., Hayut, 352 F.3d at 744 (citing cases). For these rea-
sons, Jennings’s 1983 claim against Dorrance for sexual harassment
should survive summary judgment.
Jennings’s related § 1983 claim against Ehringhaus should likewise
go forward because Jennings proffers evidence that Ehringhaus, as an
administrative official with authority to take action against Dorrance,
failed to act and thereby tacitly authorized Dorrance’s sexual harass-
ment. See Baynard, 268 F.3d at 235. More specifically, Jennings’s
evidence would allow a jury to find that Ehringhaus had actual
knowledge of Dorrance’s misconduct; that her response was "so inad-
equate as to show deliberate indifference to or tacit authorization of
the alleged offensive practices"; and that there exists "an affirmative
causal link" between Ehringhaus’s inaction and Jennings’s constitu-
tional injury. Id. (citing Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir.
1994)). Ehringhaus is therefore not entitled to summary judgment on
Jennings’s § 1983 claim against her for supervisory liability.
Dorrance and Ehringhaus argue that they are entitled to qualified
immunity on the § 1983 claim. Because the district court did not
address this issue in its summary judgment ruling, I would decline to
consider it on appeal and would instead allow the district court to
decide it in the first instance on remand. See Brown v. United States,
851 F.2d 615, 620 (3d Cir. 1988) ("[A]lthough it is within our power
to do so, it would be inappropriate for us to decide this [qualified
immunity] question on appeal, even if the record provided a sufficient
basis for its resolution," because the district court had not yet
addressed or ruled upon it.).
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IV.
Jennings’s case opposing summary judgment is made much easier
because Dorrance does not deny all wrongdoing. Dorrance and the
University admit that he participated in group discussions with
women’s soccer team members about their sexual activities. While
Dorrance claims that he was only teasing or jesting, both he and the
University admit that his actions were "altogether inappropriate" and
"unacceptable." J.A. 1531. Dorrance and the University apologized to
Jennings, and the University warned Dorrance that it was "inappropri-
ate for [him] to have conversations with members of [his] team (indi-
vidually or in any size group) regarding their sexual activity." J.A.
1533. To these damning admissions, Jennings adds evidence that Dor-
rance 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 suffi-
cient 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.3 I respectfully dissent for these reasons.
3I agree with the majority’s decision to affirm the grant of summary
judgment in favor of the remaining defendants and in favor of Dorrance
on Jennings’s common law claim for invasion of privacy.
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