Jane Doe v. University of the Pacific

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JANE DOE,
Plaintiff - Appellant,
v.
UNIVERSITY OF THE PACIFIC,
Defendant - Appellee.
No. 10-17315
D.C. No. 2:09-cv-00764-FCD-
KJN
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Frank C. Damrell, Senior District Judge, Presiding
Argued and Submitted January 17, 2012
San Francisco, California
Before: McKEOWN, CLIFTON, and BYBEE, Circuit Judges.
Doe was sexually assaulted by three male University of the Pacific (“UOP”)
basketball players. Doe claims that UOP acted with deliberate indifference and
retaliated against her in violation of Title IX. The district court granted summary
FILED
JAN 31 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 6 --

2
judgment for UOP on all claims. We have jurisdiction under 28 U.S.C. § 1291,
and we affirm.
Damages under Title IX are available only if an official with authority to
address the alleged discrimination and institute corrective measures has actual
knowledge of the discrimination and fails to adequately respond—i.e., acts with
deliberate indifference. See Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274,
290 (1998). The test for deliberate indifference is “whether a reasonable fact-
finder could conclude that the [official]’s response was clearly unreasonable in
light of the known circumstances.” Oden v. N. Marianas Coll., 440 F.3d 1085,
1089 (9th Cir. 2006) (internal quotation marks omitted). Summary judgment is
properly entered when a school’s response to the harassment was not clearly
unreasonable as a matter of law. Davis v. Monroe Cnty. Bd. of Educ., 526 U.S.
629, 649 (1999).
I. DELIBERATE INDIFFERENCE
A. Doe claims that UOP’s response to a prior campus rape in April 2008
was clearly unreasonable in light of the known circumstances, and thereby
increased the risk of her assault. Doe bases this claim on a suspicion by Edward
Michael Belcher, UOP’s Director of Public Safety, that one of the assailants may
have been involved with the April rape. At the time of Doe’s assault, however,

-- 2 of 6 --

3
Stockton police and UOP had only a general description of the attackers from the
prior incident. Belcher reported his suspicion to the Stockton police but they chose
not to pursue it because the victim had declined to cooperate further. UOP had no
actual knowledge that any of the assailants in this case were involved in the April
incident. Additionally, Belcher was not clearly unreasonable in concluding that the
connection between the assailants and the April incident was too tenuous given the
general nature of the description and the lack of sufficient evidence. Given the
information that was available to UOP at the time of Doe’s assault, the district
court did not err in concluding that UOP’s actions were not clearly unreasonable.
B. Doe next contends that UOP’s response to her sexual assault was
clearly unreasonable and subjected her to further harassment. Doe first claims that
UOP itself harassed her when Elizabeth Griego, the Vice President for Student
Affairs, allegedly admonished her that the men “were very popular and did not
need to force anyone to have sex with them.” Inadmissible evidence, however, is
insufficient to create a relevant factual dispute. See Fed. R. Civ. P. 56(c)(4);
Nelson v. Pima Cmty. Coll., 83 F.3d 1075, 1081–82 (9th Cir. 1996). Even if this
statement were admissible, it does not create a factual dispute that, if resolved in
Doe’s favor, would show that an official at UOP with authority to address the

-- 3 of 6 --

4
alleged discrimination and institute corrective measures had actual knowledge of
and failed to adequately respond to the harassment.
Doe also claims that UOP unreasonably responded to her assault by
requiring her to be in contact with her assailants when it refused to expel two of the
men. In Oden, we stated that “[a]n aggrieved party is not entitled to the precise
remedy that he or she would prefer.” 440 F.3d at 1089. After hearing over fifteen
hours of testimony, the Judicial Hearing Board found Doe’s attackers guilty and
the men were punished—one assailant was expelled and two were suspended. The
suspended assailants were required to complete further education and training in
substance use and sexual assault awareness, and, when they returned after their
suspensions, were required to adhere to several probationary terms, including no
direct or indirect contact with Doe or her family. The assailants were further told
that they would be expelled if they committed any additional violations of the
Student Code of Conduct, and their academic transcripts and records would reflect
the suspensions. The district court did not err in concluding that UOP’s response
was not clearly unreasonable as a matter of law in punishing the assailants. See
Oden, 440 F.3d at 1089.

-- 4 of 6 --

5
II. RETALIATION
Doe contends that UOP retaliated against her by requiring the men’s
basketball team to have “no contact” with her. To prevail on a claim of retaliation
under Title IX, the claimant must prove that she was retaliated against because she
complained of sex discrimination. Jackson v. Birmingham Bd. of Educ., 544 U.S.
167, 184 (2005).
Doe first argues that the district court abused its discretion in excluding
evidence of the “stay away from [Doe]” directive. The district court found that this
evidence was inadmissible hearsay. The statement at issue was allegedly a
directive from Lynn King, the Athletic Director, given to the head of the men’s
basketball team, which was then relayed to Doe through another coach. There is
no evidence that King or the coaches were authorized to speak for UOP or that this
was a policy adopted by UOP; thus the statement did not fall within the hearsay
exception for a statement by the opposing party or its agent. See Fed. R. Evid.
801(d)(2)(C), (D). Therefore, the district court did not abuse its discretion.
Even if this particular statement had been admitted, there is no evidence that
the university acted with a retaliatory motive or that the non-retaliatory motive
given for its actions was pretextual. UOP claims that its decisions were motivated
by its desire to reduce tensions between the two teams and to avoid making Doe

-- 5 of 6 --

6
the target of harassment. Doe has not offered any evidence to show that this
justification was pretextual. Therefore, the district court did not err in concluding
that Doe failed to make out a retaliation claim sufficient to defeat summary
judgment.
AFFIRMED.

-- 6 of 6 --