Fox v. Pittsburg State University
Opinion of the Court
MEMORANDUM AND ORDER
A jury rendered a verdict in favor of Plaintiff Martha Fox on claims for damages arising under Title VII and Title IX against Defendant Pittsburg State University (“PSU”), and the Court entered judgment on the verdict. The parties have now filed post-trial motions.
Notably, Defendant improperly filed separate motions for judgment as a matter of law as to each claim, effectively circumventing the page limitations. It is not in compliance with the Federal Rules of Civil Procedure or the local rules, which contemplate one filing for all claims.
1. Background
This matter arose out of Plaintiffs employment as a custodian at PSU between July 2010 and November 2015. Plaintiff contends that she was subjected to sexual harassment from April 2012 to March 2014 by Custodial Supervisor Jana Giles and custodian Cathy Butler Brown. Plaintiff complained to members of the custodial management, including Wanda Endicott
In February 2014, Plaintiff complained about the ongoing sexual harassment to Cindy Johnson, PSU’s Director of Equal Opportunity and Affirmative Action. Plaintiff alleges Defendant failed to properly investigate the complaints in that Johnson refused to interview witnesses. Johnson told Plaintiff that she would not investigate Plaintiffs complaints because Johnson feared it would start a “firestorm.” Plaintiff alleges that she did not receive sexual harassment training until after the alleged harassment took place. Plaintiff also alleges she suffered emotional distress damages as a result of the sexual harassment she endured.
Defendant filed a motion for summary judgment on the Title IX and Title VII sexual harassment and retaliation claims. The Court denied summary judgment on the Title IX and Title VII hostile work environment sexual harassment claims, but granted summary judgment on the Title VII and Title IX retaliation claims. The case proceeded to a jury trial on October 3, 2016 on the remaining claims. The jury returned a verdict in favor of Plaintiff on both claims, awarding damages of $100,000 on the Title IX claim, and $130,000 on the Title VII claim. The Court denied Defendant’s oral and written motions under Federal Rule of Civil Procedure 50(a) for judgment as a matter of law,
II. Motion for Judgment as a Matter of Law
A. Standard
A district court may grant a motion for judgment as a matter of law under Rule 50 if it “finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on [the] issue.”
B. Discussion
The Court addresses the motions for judgment on the Title IX and Title VII claims separately, as the parties have done in the briefing.
1. Title IX Claim
Defendant moves for judgment as a matter of law on the Title IX claim for four
a. Private Right of Action
Plaintiff invoked both Title VII and Title IX at trial to seek relief for the hostile work environment sexual harassment-she faced based on her sex. Defendant argues that Title IX does not grant a private right of action to a custodial employee. This argument is twofold. First, Defendant argues that Title IX is “preempted” in the context of employee-on-employee sexual harassment by Title VIL
i. Waiver
As to the “preemption” argument, Plaintiff argues this has been waived because it was not raised in the Rule 50(a) motion made at trial. Although inartfully drafted, the Court believes that Defendant’s response is that this is “jurisdictional” in nature, so it cannot be waived and may be raised at any time. The general rule is that “[a] party may not circumvent Rule 50(a) by raising for the first time in a post-trial motion issues not raised in- an earlier motion” for judgment as a matter- of law.
ii. Title VII Displacing Relief Under Title IX
The Court finds that eyen if Defendant’s argument that Title VII displaces Title IX has not been waived, it is without merit. The issue of whether Title VII displaces relief under Title IX to recover damages for employment discrimination is unsettled.
There are six Supreme Court decisions guiding this Court’s conclusion that Title VII does not displace Title IX.
The circuits have split on whether Title VII is intended to displace Title IX for claims against schools in the employment discrimination context. In Lakoski v. James, the Fifth Circuit held that Title VII displaces Title IX because allowing Title IX employment discrimination claims
By contrast, the Fourth Circuit in Preston v. Commonwealth of Virginia ex rel. New River Community College held that retaliatory employment discrimination may be sought under Title IX and Title VII.
In March 2017, in Doe v. Mercy Catholic Medical Center, the Third Circuit held that Title IX and Title VII had concurrent applicability and that Title VII does not displace Title IX employment discrimination claims.
This Court will follow the approach of the majority — the First, Third, Fourth, and Sixth Circuits — that Title VII and Title IX have concurrent applicability in employment discrimination claims.
This Court is further persuaded that this is the approach that would be taken by the Tenth Circuit given that the Tenth Circuit applies Title VII principles to Title IX employment discrimination actions.
Nothing leads this Court to believe that Title VII is meant to be the “exclusive” remedy for employment discrimination. Further, nothing leads this Court to believe that Title VII is meant to displace Title IX, as the Tenth Circuit has recog
iii. Nexus to Educational Programs or Activities for Title IX
The Court next addresses Defendant’s alternative argument that Plaintiff must show her work has a “nexus” to education in order to qualify for Title IX’s remedies. Defendant argues that this “nexus” is a requirement for employment discrimination actions following the 1987 amendment to Title IX. The 1987 amendment to Title IX was in response to prior holdings of the Supreme Court limiting its reach to only programs that received federal funding. In 1982, in North Haven, the Supreme Court held that Title IX’s prohibition of sex discrimination of students and employees, but only employees who directly participated in federal programs or directly benefitted from federal grants, loans or contracts.
In response to these holdings narrowing the scope of Title IX protection, Congress enacted the Civil Rights Restoration Act of 1987.
The Court rejects Defendant’s argument that the 1987 amendment to Title IX only decided the issue of whether the institution as a whole is covered, and that a plaintiff still needs to show that her work had a “nexus” to educational programs or activities. Given Title IX’s broad language, this position simply does not comport with the plain language of the statute — u[n]o 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.”
“[bjecause § [1681(a) ] neither expressly nor impliedly excludes employees from its reach, we should interpret the provision as covering and protecting these ‘persons’ unless other considerations counsel to the contrary. After all, Congress easily could have substituted ‘student’ or ‘beneficiary1 for the word ‘person’ if it had wished to restrict fhe scope of § [1681(a)].”52
Further, the requirement of a nexus to “education” is not consistent with Title IX’s broad purpose, which is “to avoid the use of federal resources to support discriminatory practices” and “provide individual citizens effective protection against those practices.”
Moreover, many of the cases Defendant cites for the proposition that Plaintiffs work must relate to an educational program or activity are no longer of continued validity in light of the 1987 amendment.
Defendant also relies upon Preyer v. Darmouth,
The Court further rejects Defendant’s suggestion that Congress intended for Title IX to distinguish the janitorial staff as any less a part of the university or deserving of protection than faculty. Defendant asks this Court to draw an arbitrary line that prohibits groundskeepers or maintenance workers from asserting Title IX claims but allows professors or teachers. Defendant ignores the fact that there are hundreds of different types of employees at a university or on a university campus, such as bus drivers, cafeteria workers, librarians, childcare workers, bookstore employees, docents at the university art museum, athletic directors, resident assistants at dorms, and student admissions recruiters. . Nothing Defendant cites persuades this Court that Title IX is meant to allow claims by some of these employees but not all. Title IX must be given “a sweep as broad as its language.”
Lastly, Defendant conflates the issue of whether Title IX requires that an employee have a “nexus”, to educational programs or activities and the issue of whether a student’s action under Title- IX requires a showing that there was a “systemic effect Of denying the victim equal access to an educational program or activity” under Davis v. Monroe County Board of Education.
In any event, Defendant’s argument is without merit. Defendant relies on cases that involve student sexual harassment under Title IX.
b. Sovereign Immunity
Defendant also argues that it cannot be held liable for the Title IX claim because Congress did not intend to waive sovereign immunity of the states. Defendant contends that the state did not have “notice” of the particular type of lawsuit asserted here — “an implied right of action for money damages based on a claim of employment discrimination against a sovereign for alleged sexual harassment by a coworker” — when it accepted federal • funds more than five years ago.
Plaintiff argues that Defendant has waived this argument because it was not made ih the Rule 50(a) motion. While a party must raise all issues in its Rule 50(a) motion that it wishes to dispute in its Rule 50(b) motion,
Although this argument has not been waived,s it is wholly .without merit. Pursuant to its power under section five of the Fourteenth Amendment, “Congress abrogated the States’ Eleventh Amendment immunity under Title IX.”
c. Denial of Access to Educational Benefits
Defendant further argues that Plaintiffs allegations of emotional distress were insufficient for recovery of damages under Title IX because Plaintiff is required to show a denial of access to educational programs or activities. The Court briefly discussed its analysis of this requirement in the context of Defendant’s argument that Title VII displaces relief under Title IX, concluding that in the employment discrimination context for purposes of Title IX sexual harassment allegations, denial of educational benefits is not a required showing outside of student sexual harassment claims.
i. Case Law Applying Title VII Standards to Title IX
As a threshold matter, the Tenth Circuit holds that Title VII standards should be applied to a case of employment discrimination brought under Title IX,
Further, there is a body of case law applying Title VII’s substantive standards to Title IX employment discrimination claims. For example, in Doe v. Mercy Catholic Medical Center, the Third Circuit considered whether the claims of a medical resident for Title IX retaliation, quid pro quo sexual harassment, and hostile work environment were cognizable.
Notably absent from these cases is any requirement of denial of access to educational benefits. Indeed, as the Court previously discussed, if a claimant was required to show a denial of equal access to educational benefits, Title IX would not be applicable to employment discrimination. For even a teacher or professor, whieh Defendant seemingly concedes would be entitled to Title IX protection,
Furthermore, Defendant’s reliance on 34 C.F.R. § 106.51, a Department of Education regulation, is misplaced. This regulation provides a laundry list of employment benefits that cannot be denied on the basis of sex in an educational program or activity receiving federal financial aid, including broadly applying to “[a]ny other term, condition, or privilege of employment.” Of course, this regulation is directly contrary to Defendant’s position that Plaintiff must show a denial of access to “educational” benefits; nothing in this regulation limits the reach of Title IX to denial of educational benefits. In fact, the language “terms, conditions, or privileges of employment” as used in 34 C.F.R. § 106.51(b)(10) is directly lifted from Title VII.
Finally, while the Court acknowledges that it applied the denial of access to educational benefits standard in ruling on the Rule 50(a) motion, the issue was not raised at that stage in the litigation as Plaintiff did not respond to the Rule 50(a) motion. With the benefit of extensive briefing in the Rule 50(b) context, the Court agrees with Plaintiff that the systemic effect of denying the victim access to educational programs or activities standard does not apply in the Title IX employment discrimination context.
ii. Application of Title VII Severe or Pervasive Harassment Standard
While Plaintiff is not required to show a denial of access to educational benefits, Title VII sexual harassment standards dictate what constitutes denial of terms, conditions, or privileges of employment. “For
There was sufficient evidence presented at trial, that the harassment was sufficiently objectively “severe or pervasive” to change the terms or conditions of Plaintiffs employment. Jana Giles engaged in physical contact with Plaintiff, including hair touching incidents and Giles’s attempt to rub against Plaintiff while Plaintiff was cleaning a bathroom stall. Although there was contrary evidence that the hair touching incident was consensual, Plaintiff testified that it was not. It is not the province of the Court to make credibility determinations. Viewing the evidence in the light most favorable to Plaintiff, the hair touching incidents were non-consensual.
Further, there was evidence of objectively severe or pervasive harassment. Giles made numerous sexually charged comments, including asking Plaintiffs husband how she tastes, asking Plaintiff about her sex life with her husband, asking Plaintiff if she had been with a woman, telling Plaintiff she could make her feel better than her husband, and making a “hu-hu-hu” noise to mimic the female orgasm while telling Plaintiff she had practiced all night for her. Giles also made sexually charged gestures toward Plaintiff, including wiping her crotch in front of her. Further, on at least one occasion, Giles sat and .waited in Plaintiffs custodial closet in the dark, startling Plaintiff when she arrived. Giles greeted Plaintiff, saying Plaintiff had finally made it. Plaintiff video recorded Cathy Butler Brown wiping her crotch in front of Plaintiff and telling her to “picture this.” Plaintiff testified that incidents of this nature happened on average two to three times per week starting in 2012. Viewing the evidence in the light most favorable to Plaintiff, there was sufficient evidence of an objectively hostile work environment from the perspective of a reasonable person in Plaintiffs position.
Sandra Brown, a custodial supervisor senior at PSU, corroborated Plaintiffs testimony, describing how Plaintiff was “bubbly,” “fun,” and “talkative,” before the alleged harassment began, but after it began, Plaintiff stopped talking to others, often cried, acted sad, and seemed depressed. Sandra Brown observed Plaintiff at work with a red nose and swollen eyes. Plaintiffs husband, Rick Fox, who also worked as a custodial specialist at PSU, testified that during the time period of the harassment, Plaintiff acted sad, cried herself to sleep, and lost weight. Viewing the evidence in the light most favorable to Plaintiff, there is sufficient evidence that the harassment was both objectively and subjectively severe or pervasive, and thus was actionable under Title IX.
d. Actual Notice And Deliberate Indifference
Defendant’s argument that there was insufficient evidence of actual notice to an appropriate person at PSU is threefold. First, Defendant argues that actual notice was not given to an appropriate person, namely Johnson, until February 2014. Second, if Endicott and Malle were appropriate persons to receive reports of sexual harassment, Plaintiffs statements were too vague to give them notice. Third, once charged with actual notice, PSU did not act deliberately indifferent to the allegations of sexual harassment.
To succeed on a Title IX claim, the Supreme Court has held that a claim for money damages based on sexual harassment may arise under Title IX only if (1) “an official who at a minimum has authority to address the alleged discrimination and to institute corrective measures on the [funding] recipient’s behalf has actual knowledge of discrimination in the recipient’s programs and fails adequately to respond,” and (2) the inadequate response “amount[s] to deliberate indifference to discrimination.”
First, the Court finds that Johnson, PSU’s Director of Equal Opportunity and Affirmative Action, was not the only appropriate person to report the sexual harassment to in order to put the university on notice. Indeed, the Tenth Circuit rejects the notion of determining the “appropriate person” based on job title alone.
Second, the Court finds Malle and Endi-cott were among the appropriate persons to whom to report sexual harassment for purposes of Title IX liability. In Murrell v. School District Number 1 of Denver, Colorado, the Tenth Circuit clarified that “appropriate persons” to report to for the purposes of Title IX liability depends on whether they exercised control over the harasser and depends on the context in which the harassment occurred.
Malle, the physical plant supervisor and direct supervisor of Plaintiff, Giles, and Butler Brown, exercised control over their schedules and assignments. While Malle
Endicott, the director of custodial services, oversaw all custodial and general services staff. Endicott had the power to hire, fire, and discipline employees, including Giles and Butler Brown. She also evaluated each custodial supervisor for PSU, and she signed off on supervisor evalúa-tions of all employees. Malle testified that complaints were often referred to Endicott when they were beyond his control. Thus Endicott was an “appropriate person” for purposes of reporting sexual harassment.
Furthermore, the Court finds that Malle and Endicott were given “actual notice” of sexual harassment prior to March 2014. Actual notice “requires more than a simple report of inappropriate conduct ... [however] the actual notice standard does not set the bar so high that a [school] is not put on notice until it receives a clearly credible report.”
But here, without delving into any off-campus conduct to which Defendant argues Title IX does not cover,
Endicott testified that she first became aware of the conduct ongoing between Plaintiff and Giles in September 2013 when Malle brought Plaintiff and Giles to her office. Endicott further testified that Plaintiff never called the complained-of conduct “sexual harassment.” Endicott testified that Plaintiff mentioned the “hu-hu-hu” sound Giles made that Plaintiff believed was sexual in nature. Endicott further testified that she' then asked Plaintiff if she was alleging that Giles sexually harassed her, but Plaintiff did not answer. Endicott further testified that because of Plaintiffs nonresponse, Endicott did not perceive the conduct as sexual harassment. Giles’s testimony contradicts Endicott’s testimony about the meeting in Endicott’s office. Giles testified that at the meeting Plaintiff told Endicott that Plaintiff was alleging sexual harassment, which prompted Giles to throw her glasses in frustration and suggest Plaintiff and her meet at the park to have a fist fight.
Endicott further testified that Plaintiff did not make another complaint about harassment until February 2014 when Plaintiff showed Endicott the video of Butler Brown grabbing her crotch and saying .“picture this.” Endicott testified that this was the first time Plaintiff mentioned sexual harassment. Endicott also testified that in the February 2014 meeting, Plaintiff advised her that Plaintiff had been telling Malle about this conduct for quite some time.
Sandra Brown testified that on another occasion, while she was in Endicott’s office to make an unrelated complaint, Sandra Brown mentioned the relationship between Giles and Plaintiff to Endicott. Sandra Brown told Endicott “we all know something is going on” and “you can see her when she comes through the time clock, something has happened.”
Rick Fox testified that after Plaintiff complained to Malle, on five or six occasions, Rick Fox asked Malle whether he was going to do something to stop the conduct. Rick Fox testified that he did not use the words “sexually hostile work environment” because he did not know what that was. Later, Rick Fox complained to Endicott after Malle did nothing to stop the conduct. And, in February 2014, Rick Fox wrote a letter to Johnson that included many of the sexual harassment allegations his wife made. Rick Fox’s letter further stated that he was complaining to Johnson because “Wanda and Kevin [were not] doing anything about” the allegations.
Viewing all of the testimony and evidence in the light most favorable to Plain
The Court further finds that there is sufficient evidence that having been given actual notice, Defendant acted with deliberate indifference. A response is deemed to show deliberate indifference only where the federal funding recipient’s response to the harassment or lack thereof is .clearly unreasonable in light of the known circumstances.
There was evidence that prior to September 2013, Plaintiff and Rick Fox had told Malle about sexually harassing conduct from Giles beginning in 2012. Despite Malle’s assurance that hé was going to involve Endicott, he did not. Nor did Defendant respond when Sandra Brown put Malle and Endicott on actual notice of issués’between Plaintiff and Giles. Viewing the evidence in the light most favorable to Plaintiff, this was unreasonable, in light of Malle’s duty per PSU training and policies to document everything, stop the harassment, and/or report it to Johnson.
Later, when Defendant was again given actual notice, this time during the September 2013 meeting, Defendant’s only response was to direct Plaintiff to clock out after Giles in order to .avoid confrontation. This was the only “remedial” measure taken. Despite multiple complaints of conduct constituting “sexual harassment,”
Defendant was again placed on actual notice in February 2014 when Plaintiff showed Endieott the video recording, of Butler Brown grabbing her crotch. Malle responded by meeting with Butler Brown and taking notes on Butler Brown’s side of the story.
Moreover, Johnson’s response in March 2014 could be deemed unreasonable as a matter of law. As an appropriate person,
Johnson issued a letter that stated that the complained of conduct was inappropriate and in violation of PSU’s Notice of Nondiscrimination and Sexual Harassment Policy.
2. Title VII Claim
Defendant moves for judgment as a matter of law on the Title VII claim for five reasons — (1) Plaintiff failed to prove that the harassment occurred because of her gender; (2) Plaintiff bootstrapped nonsexual, non-gender based conduct into her sexual harassment claim; (3) Defendant is not liable for after hour, off campus conduct; (4) Plaintiff failed to prove the conduct was severe, physically threatening or humiliating, or that it interfered with her work; and (5) Plaintiff failed to show Defendant had actual or constructive notice of the harassment.
a. Harassment Because of Plaintiffs Gender
Defendant contends it is entitled to judgment as a matter of law because Plaintiff provided insufficient evidence that the conduct was based on her gender. To bring a claim of gender discrimination based on a hostile work environment under Title VII, Plaintiff must establish (1) she is a member of a protected group; (2) she was subject to unwelcome harassment; (3) the harassment was based on sex; and (4) due to the harassment’s severity or pervasiveness, the harassment altered a term, condition, or privilege of the plaintiffs employment and created an abusive working environment.
After recognizing a cause of action for same-sex sexual harassment, the Supreme Court laid out three evidentiary routes in which an inference of discrimination because of sex can be drawn in the hostile work environment context.
Defendant argues that Giles’s conduct was not based on Plaintiffs sex because many of the comments were nonsexual in nature, such as calling Plaintiff a skunk, telling her she stunk, and telling Plaintiff that she was going to beat her ass. Although there was evidence of such non-sexual comments, there was sufficient evidence from which a reasonable jury could find that Giles’s conduct was motivated by sexual desire, not by mere dislike. Giles was openly homosexual, as she and her long-term partner Kristi McGowan testified.
Further, Giles made sexual gestures to Plaintiff. For example,- Giles rubbed her crotch at the timeclock and made a “hu-hu-hu” noise while stating she had been practicing all night for Plaintiff. Plaintiff testified Giles waited in Plaintiffs custodial closet with the lights off and stated she was glad Plaintiff made it and it was about time she got there. Giles did not need to explicitly ask Plaintiff to engage in sexual acts or to go on a date, as Defendant suggests. Viewing the evidence in the light most favorable to Plaintiff, there was sufficient evidence for a reasonable jury to conclude that Giles’s conduct was based on sexual desire, and that Giles’s conduct was based on Plaintiffs sex.
Defendant further argues that because Butler Brown was not proven to be homosexual, her conduct could not be considered to be based on Plaintiffs sex. However, the Tenth Circuit has explicitly stated that the alleged harasser need not be openly homosexual as long as the conduct was motivated by sexual desire.
Defendant also argues that the alleged harassment was not based on sex because it was merely “non-sexual conduct, innocuous events, and/or bullying.”
b. “Bootstrapping” Non-Sexual, Non-Gender Conduct
Defendant next contends it is entitled to judgment because Plaintiff is improperly “bootstrapping” non-sexual, non-gender based conduct as evidence. Although inart-fully drafted, Defendant’s brief seems to suggest that Plaintiff must meet a threshold for gender-related comments and conduct before non-gender-related comments and conduct may be considered, and that the evidence of gender-related conduct was insufficient in detail and frequency to allow admission of the non-gender-related conduct. Defendant cites no case law supporting its “threshold” theory, and the Court declines to impose such a requirement absent direction from the Tenth Circuit.
In fact, facially gender-neutral abusive conduct can support a gender-based hostile work environment claim when “viewed in the context of other, overtly gender-discriminatory conduct.”
Moreover, Defendant ignores or downplays nearly all of the gender-related harassment alleged at trial. As the Court has outlined in detail above, there is more than sufficient evidence of sexually charged conduct and comments.
Plaintiff testified that the sexually harassing conduct between her and Giles began in 2012 and continued for approximately two years, until she filed her charge of discrimination with the EEOC in March 2014. Plaintiff testified incidents would happen two to three times per week. Plaintiff testified that the harassing conduct worsened in March or April 2013. Sandra Brown corroborated this testimony when she testified that Giles would harass Plaintiff two to three nights a week. Sandra Brown testified this happened in 2013 and 2014, and she estimated this went on for a year and a half. Taken together, in the light most favorable to Plaintiff, there was sufficient evidence of overtly gender-related sexual comments and conduct. Plaintiff presented specific examples of sexually charged conduct and comments, identified general time frames of the conduct, and provided relevant content and context of these comments.
c. Off-Campus, After-Hour Conduct For Title VII Liability
Defendant also contends it is entitled to judgment as a matter of law as to all off-campus, after-hours conduct. Defendant refers to: (1) evidence regarding the conduct of Kristi McGowan, Giles’s long-time partner, because McGowan was a non-employee, and her conduct was off-campus; and (2) evidence regarding the February 21, 2014 incident where Giles and McGowan were at and/or near the Fox home.
Defendant does not cite case law supporting its argument that conduct occurring outside of the office cannot be considered for purposes of Title VII. Rather, Defendant seeks to distinguish Meritor Savings Bank FSB v. Vinson,
Further, Defendant’s argument that employees could not be disciplined for off-campus conduct is without merit. Endicott testified an employee could lose his or her job for off-campus conduct. For example, in the September 2013 meeting in Endi-cott’s office, Giles told Plaintiff that they should go to a park and have a fist fight. Endicott warned Giles that she could lose her job for such conduct.
Finally, Defendant points to this Court’s ruling granting Defendant summary judgment on the retaliation claim, as supporting Defendant’s argument that Endicott and Malle had no control over McGowan’ conduct during the February 21, 2014 altercation. In the context of the previously dismissed retaliation claim, this Court stated:
Similarly, no reasonable jury could find that Malle and Endicott’s response when the Foxes told them that McGowan came to their house amounted to encouragement of McGowan’s behavior or disregard for Plaintiffs complaint. Rather, they expressed their belief that they could not discipline Giles for behavior by her girlfriend that occurred outside of the workplace. Furthermore, although Giles was in her car down the street during the interaction between Rick Fox and McGowan, any retaliatory behavior during this interaction- was by McGowan, who was not a PSU employee and over whom Malle and Endicotjt had no authority.145
But this reasoning was in the context of consideration of the retaliation claim. This incident may still properly be considered for the hostile work environment sexual harassment claim because it goes to the severity and physically threatening nature of the environment. Given that Giles was a part of the incident and it was immediately following work, this incident should not be disregarded as a matter of law as it was undoubtedly relevant to the environment.
Plaintiff must show that the harassment was objectively and subjectively so severe or pervasive that it altered a term, condition, or privilege of her employment.
By requiring a showing of a workplace permeated by severe or pervasive discriminatory conduct, the Supreme Court struck a balance between two extremes, creating “a middle path between making actionable any conduct that is merely offensive and requiring the conduct to cause a tangible psychological injury.”
Defendant argues that there is evidence of only one incident of physical contact between Giles and Plaintiff, the hair touching incident. Defendant argues the lack of physical contact alone makes the conduct not severe enough to be actionable. But the Tenth Circuit has held the opposite.
Even if there was no evidence of physical contact, there is ample evidence of comments and other conduct of an overtly sexual nature.
Defendant further contends Plaintiff did not subjectively experience a severe or pervasive environment because it was stipulated that Plaintiff cbntinued receiving “satisfactory” work performance evaluations. While this is a factor to consider in thé objective inquiry into the severity of the environment, this does not mean Plaintiff did not subjectively experience a severe or pervasive environment. It is undoubtedly possible' for a person to be depressed and scared at work while still working to maintain employment. As explained in the Title IX discussion above, there was evidence that Plaintiff had heightened anxiety, depression, sleeplessness, and weight loss during the harass
Defendant, without citation, argues that Plaintiff has not met the frequency or specificity requirements for Title VII as to the allegations of harassment between the September 2013 meeting with Endicott and February 21, 2014 when Endicott told Giles that Plaintiff was accusing her of sexual harassment. Once again, this argument is contradicted by the record. Plaintiff testified the conduct got worse during this period.
Moreover, a reasonable jury could also find that Plaintiff experienced both a subjectively and objectively severe or pervasive hostile environment that altered the terms and conditions of her employment because Johnson, Defendant’s Title IX coordinator, agreed as much. In an audio recording Plaintiff surreptitiously made during their meeting, Johnson acknowledged that Plaintiff was being sexually harassed and that there was a sexually hostile work environment.
e. Actual or Constructive Notice and Inadequate Response
Finally, to succeed on her Title VII claim, Plaintiff must also show that PSU “had actual or constructive knowledge of the hostile work environment but did not adequately respond to notice of the harassment.”
III. Motion for New Trial or in Alternative Remittitur the
A. Standard for Motion for New Trial
Under Federal Rule of Civil Procedure 59(a), a court may grant a new trial on all or some of the issues on motion of a party “after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court.”
“If ‘a new trial motion asserts that the jury verdict is not supported by evidence, the verdict must stand unless it clearly, decidedly, or overwhelmingly against the weight of the evidence.’ ”
B. Standard for Motion for Remitti-tur
The use of remitter is committed to the discretion of the trial court.
C. Discussion
Defendant’s motion for new trial identifies a laundry list of alleged trial errors, as well as alleged errors in various pretrial rulings. These errors fall intb five categories: (1) double recovery, (2) excessive verdict/ .remittitur, (3) improperly admitted evidence leading to prejudice, (4) admission of an audio recording, and (5) jury instructions. Each category of alleged error will be addressed in turn.
1. Double Recovery
The jury awarded Plaintiff $100,000 on the Title IX claim and $130,000 on the Title VII claim. Defendant contends that Plaintiff impermissibly double recovered for her Title IX and Title VII claim because both claims are based on the same operative facts. Defendant alleges that Plaintiff is seeking redress for emotional distress from sexual harassment under Title VII and Title IX, so she may be remedied under only one statute.
The issue of whether an award is duplicative is a question of fact, which is reviewed for clear error.
Title IX and Title VII are two distinct theories of liability. Title VII and Title IX protect two different rights. As the Supreme Court explained in Gebser,
Title VII applies to all employers without regard to federal funding and aims broadly to “eradicate] discrimination throughout the economy.” Title VII, moreover, seeks to “make persons whole for injuries suffered through past discrimination.” Thus, whereas Title VII aims centrally to compensate victims of discrimination, Title IX focuses more on “protecting” individuals from discriminatory practices carried out by recipients of federal funds.185
While many elements of Title VII and Title IX claims overlap,
The jury’s award of a net total of $230,000 is consistent with the low end of the total request for recovery made by Plaintiffs counsel during closing. He stated in his closing arguments, “I’m going to suggest a number to you that — I base it on cases we’ve had, similar ones, just a range and — of cases in this area of, you know, about $230,000 to $350,000.”
2. Excessive Verdict/ Remittitur
Defendant requests remittitur or a new trial because the damage award was excessive in light of the evidence of emotional distress damages. Defendant first argues that the evidence of emotional or mental distress Plaintiff presented is insufficient to justify the jury’s damage award. Defendant next argues that the verdict is excessive because the alleged harassment, which included “almost no” allegations of physical harassment, was not severe. The Court has already twice addressed and found that there was evidence of physical harassment, and even if there were no physical harassment, the overtly sexual and nonsexual harassment was severe and pervasive.
Defendant argues this case is comparable to Hughes v. Regents of University of Colorado
In Wulf, the Tenth Circuit held that an award of $250,000 in damages for emotional distress was excessive and remanded the case for reconsideration and an award of damages not to exceed $50,000.
The Court finds this case distinguishable from Hughes and Wulf, which are both more than twenty-year-old cases.
Plaintiff also faced a different form of discrimination than the plaintiff in Hughes, who was “bumped” to a different job, and in Wulf, who was fired in retaliation for writing a letter to have the police department investigated. While the plaintiffs in Wulf and Hughes faced one-time events, Plaintiff faced intentional hostile work environment sexual harassment for nearly two years. Her job prior to the sexual harassment was nothing like the job during the sexual harassment. She faced physical sexual harassment, overt sexual comments and conduct, and threats sometimes multiple times a week, changing.the terms and conditions of her employment over the course of two years. Plaintiff attempted to address this with her managers who either did nothing, asked her to clock in at a different time than her harasser, or in the case of Johnson, punished her as well as her harasser. This is an entirely different set of circumstances than Hughes and Wulf, which warrants a much larger award.
Using the Tenth Circuit’s guidance in Melnemey, the Court is not persuaded by Defendant’s citations to awards in other cases. Rather, as the Tenth Circuit has cautioned, the focus should be on whether the compensatory damage was excessive in relation to Plaintiffs injury. As the Court has, explained above multiple times in detail, there is more than sufficient evidence of severe emotional distress with physical manifestations. Thus, viewing the $230,000 award in relation to Plaintiffs injury, the award was not excessive.
3. Improper or Prejudicial Evidence or Arguments .
Defendant seeks a new trial on the basis, of evidence and argument that it contends were, improper and prejudicial. Specifically, Defendant alleges nine errors in the admission of evidence or the allowance of certain statements by Plaintiffs counsel: (1) Plaintiff referring to Defendant as “the State,” (2) Plaintiff referring to the Constitution and the Bible, (3) Plaintiff suggesting an amount to compensate, (4) the manner in which Plaintiff attacked the credibility of certain witnesses, (5) Plaintiff advising the jury that Title VII and Title IX liability were the same, (6) the Court’s admission of evidence that related only to the previously dismissed retaliation claim, (7) the Court not admitting evidence of Rick Fox’s statement that the lawsuit was his “pay day,” (8) the Court’s admission of testimony relating to Giles rubbing against Plaintiff in a bathroom, and (9) the Court’s admission of evidence relating to Plaintiffs prescriptions. Some of these so-called errors were not properly preserved for review, as Defendant failed to cite to the'record supporting its statements and argument about them. But, for those alleged errors that are properly preserved for review, neither individually nor cumulatively did the alleged érrors prejudice Defendant’s rights.
Second, Defendant alleges that Plaintiff improperly attempted to garner sympathy with references to the Constitution and the Bible as well as references to her being a custodian. Defendant fails to explain how any such references would garner sympathy, and the Court finds that such references were proper in the context of this case. While the Court ruled in its limine order that Plaintiffs Exhibit 22,
Third, Defendant alleges that in her closing argument, Plaintiff improperly suggested to the jury that it should compensate her based on replacing wages, or based on other cases. On the contrary, Plaintiff argued that the jury should not base compensation on her wages. In fact, Plaintiff argued that basing an award for sexual harassment on the plaintiffs wages “creates sort of a two-tiered system of
Further, as itemized above, Defendant raised six other challenges to evidence or comments of Plaintiffs counsel pertaining to: impeachment of certain witnesses,
When a party makes “mere conclusory allegations with no citations to the record or any legal authority for support’ [this is] ... inadequate to preserve an issue for review.”
This Court declines to comb through the record to find the'testimony and/or eviden-tiary rulings that Defendant challenges. Nonetheless, the Court cannot ignore that some of Defendant’s challenges mischarac-terize the Court’s limine and/or evidentia-ry rulings, and misstate what the Court ruled upon at trial. For example, Defendant claims that while examining Kristi McGowan about her yelling at Rick Fox, “I’m going to fucking kill you,” Plaintiffs counsel himself yelled these words to McGowan. Of course, had Defendant cited to the transcript of that testimony, this challenge would be preserved for review. But a transcript cannot capture inflection, tone or volume. And the Court clearly recalls that while Plaintiffs counsel raised his voice with emphasis, he did not yell at McGowan.
Another example of Defendant misstating the record is in its argument that the Court erred in excluding evidence relating to Plaintiffs prescription medication. The Court did not exclude all evidence concerning the prescription medication. Both Plaintiff and Defendant were allowed to inquire into Plaintiffs testimony that she had taken Xanax for anxiety before but began taking a higher dosage for worsening anxiety after the harassment began. The only evidence the Court excluded was the prescription medication records and references to the prescription medication records. The Court excluded this evidence .upon Defendant’s limine motion to exclude the prescription records.
And still another example- of Defendant misstating the record is in its argument that Plaintiff misled the jury in closing arguments in stating “Title IX is a little different than Title VII.”
■In short, to the extent Defendant cited to the record and preserved an objection, its points of error are without merit. And, with respect to those points that Defendant failed to preserve by citing to the record, to the extent the Court could reference the record without an arduous search, those alleged points of error are also without merit.
4. Admission of Audio Recording
Defendant argues that this Court improperly allowed Plaintiff, during the direct examination of Plaintiff, to play an audio recording of -a meeting between Johnson and Plaintiff. This, Defendant argues was beyond the scope of the. Court’s limine ruling, which allowed the recording to be admitted only for impeachment purposes. Defendant further argues that the Court did not allow Defendant to play the recording during Defendant’s cross-examination of Plaintiff. Like many of the alleged points of error , addressed above, Defendant misstates the record.
During Plaintiffs case-in-chief, the Court admitted a portion of the audio recording -of the March 7 meeting between Plaintiff and Johnson. This portion of the audio recording was played during the direct examination of Johnson, to impeach her testimony denying that she had admitted that Plaintiff had been subjected to sexual harassment.
Moreover, Defendant misstates the record when it argues that the Court precluded it from playing the audio recording during cross examination. Defendant cagily fails to explain that during Johnson’s testimony in Plaintiffs case-in-chief, Defendant sought to play the entire recording, not the portion that Plaintiff had already played. And Defendant fails to explain that while Plaintiff had designated that portion of the recording as evidence, Defendant had failed to counter-designate the entire recording as evidence. Because Defendant had failed to follow the Court’s order to designate what portion(s) it would seek to admit at trial,
5. Jury Instructions
Defendant’s final argument relates to Jury Instruction No. 14, Jury Instruction No. 9, and the Title IX Jury Instructions. This Court has already ruled above that Title IX was properly applied in this case, so it overrules Defendant’s objections to the Title IX instructions. However, the Court will address Jury Instruction No. 14 and Jury Instruction No. 9 in turn.
Jury instruction No. 14 (the “Eggshell Skull Instruction”) read:
If you find in favor of Plaintiff on either one of her claims of sexual harassment, Defendant is responsible for any and all damages resulting from that sexual harassment. This is regardless of whether Plaintiff suffered from a preexisting psychological condition that made the consequences of the sexual harassment more severe for Plaintiff than they would have been for a person without the same condition.
In determining whether Defendant caused Plaintiffs claimed distress, you are allowed to consider evidence of other probable causes of such distress.
Defendant argues that the Eggshell Skull Instruction is only properly applied to tort cases alleging physical injury, not mental distress. Defendant further argues that this instruction is properly given only in tort cases and by giving it in this case, the Court created an “implied” tort remedy outside of any waiver of sovereign immunity.
The parties do not cite, nor has the Court found, Tenth Circuit case law considering an “eggshell skull” jury instruction in a Title VII or Title IX case. In
A person who has a condition or disability at the time of an injury is not entitled to recover damages therefor. However, she is entitled to recover damages for any aggravation of such preexisting condition or disability proximately resulting from the injury.
This is true even if the person’s condition or disability made her more susceptible to the possibility of ill effects than a normally healthy person would have been, and even if a normally healthy person probably would not have suffered any substantial injury.
When preexisting condition or disability is so aggravated, the damages as to such condition or disability are limited to the additional injury caused by the aggravation.246
The Tenth Circuit found the district court did not err in giving such an instruction because “[i]t ensured that the jury would award only that sum arising from [the defendant’s] aggravation of whatever preexisting condition or disability may have plagued [the plaintiff], not the sum that would compensate her for her total disability.
The Court finds Wren instructive. Wren instructs that the consideration of pre-ex-isting conditions in awarding damages is applicable beyond tort and personal injury; and pre-existing conditions may also be mental, not just physical. Moreover, consideration of pre-existing conditions does not create an “implied” tort remedy or cause of action. Rather, it is a limitation on damages.
Further, at least one circuit has considered the propriety of an “eggshell skull” instruction in a Title VII employment ease. In Jenson v. Eveleth Taconite Co., a Title VII sexual harassment and a Minnesota Human Rights Act case,
Defendant cites a number of cases for the proposition that a reasonable person standard is applied to ensure that employers are not liable for overly sensitive employees. But, Defendant conflates the substantive elements of a sexual harassment claim arising under Title IX and Title VII with the “eggshell skull” concept for determining compensatory damages. While there is both an objective and subjective element for considering whether a work environment was hostile under Title VII,
Defendant also argues that the Eggshell Skull Instruction is confusing and misleading in that it contradicts Jury Instruction No. 13 and No. 11. Defendant argues that the Eggshell Skull Instruction conflicts with the language in Jury Instruction No. 13, that “[y]ou may award compensatory damages only for injuries that Fox proves were caused by Defendant’s allegedly wrongful conduct.” Defendant also argues that the Eggshell Skull Instruction conflicts with the language in Jury Instruction No. 11, that “[y]ou must look at the evidence from the perspective of a reasonable person’s reaction to a similar environment under similar circumstances. You cannot view the evidence from the perspective of an overly sensitive person ... the alleged harassing behavior must be such that a reasonable person in the same or similar circumstances as Fox would find the conduct offensive.”
But Defendant’s arguments are without merit. As to Jury Instruction No. 11, Defendant conflates the substantive elements of Title VII and Title IX liability and the assessment of the proper amount of damages as explained above. And, as to Jury Instruction No. 13, the statement that compensatory damages may only be awarded for damages Defendant caused is not in conflict with the “eggshell skull” concept. In fact, the Eggshell Skull Instruction requires that the jury, account for Plaintiffs pre-existing condition, which may have made her more susceptible to damages, when determining the proper amount of compensatory damages. Further, as Jury Instruction No. 13 properly explains, the proper amount is not the total disability suffered, but only those Defendant caused.
Defendant next argues that even if the Eggshell Skull Instruction is properly given for 'these types of claims, the evidence in this trial- did not support the giving of this instruction. The Court disagrees. Plaintiff testified that she had pre-existing anxiety following the death of her mother. She testified at length about her anxiety prior to the harassment. She also testified that she was taking Xanax for anxiety and that she increased her dosage when her anxiety worsened during the period of harassment. There was no medipal. testimony to confirm her diagnosis, nor prescription records, which were excluded on Defendant’s limine motion. But, Plaintiff provided competent and credible evidence of her condition. The evidence at trial warranted an instruction on her pre-existing condition.
Defendant also claims error in Jury Instruction No. 9, which defined “harassment.” Defendant argues it improperly instructed on overtly gender related conduct.
IT IS THEREFORE ORDERED BY THE COURT that Defendant’s Motion for Renewed Judgment as a Matter .of Law as to the Title IX Claim (Doc. 207) is denied.
IT IS THEREFORE FURTHER ORDERED BY THE COURT that Defendant’s Motion for Renewed Judgment as a Matter of Law as to the Title VII Claim (Doc. 209) is denied.
IT IS THEREFORE FURTHER ORDERED BY THE COURT that Defendant’s Motion for New Trial or in the Alternative For Remittitur (Doc. 214) is denied.
IT IS SO ORDERED.
. The Court will consider Plaintiffs motion for attorneys' fees and expenses (Doc. 211) in a separate order.
. See Fed. R. Civ. P. 50(b) (referring to motion in the singular throughout the rule); D. Kan. R. 7.1(e) (requiring briefing to not exceed 30 pages without leave of the Court).
. Doc. 196.
. Doc. 197.
. Fed. R. Civ. P. 50(a).
. Crumpacker v. Kan. Dep’t of Human Res., 474 F.3d 747, 751 (10th Cir. 2007).
. See Sims v. Great Am. Life Ins. Co., 469 F.3d 870, 891 (10th Cir. 2006).
. See Bartee v. Michelin N. Am., Inc., 374 F.3d 906, 914 (10th Cir. 2004).
. Baty v. Willamette Indus., Inc., 172 F.3d 1232, 1241 (10th Cir. 1999) (quoting Harolds Stores, Inc. v. Dillard Dep’t Stores, 82 F.3d 1533, 1546-47 (10th Cir. 1996)).
. As the Third Circuit recognized, preemption is a doctrine that normally relates to the relationship between state and federal law. See Kazar v. Slippery Rock Univ.of Pa., No 16-2161, 679 Fed.Appx. 156, 163 n.5, 2017 WL 587984, at *5 n.5 (3d Cir. Feb. 14, 2017). Preemption, therefore, is not the proper term to describe the relationship between Title VII and Title IX, which are both federal law. Rather, the issue is whether these federal laws displace each other. The Court will refer to this theory as displacement throughout the order for purposes of clarity.
. United Int’l Holdings, Inc. v. Wharf (Holdings) Ltd., 210 F.3d 1207, 1228 (10th Cir. 2000); see Fed. R. Civ. P. 50(a)-(b).
. Title VII makes it unlawful for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to ' discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion,' sex, or national origin.” 42 U.S.C. § 2000e-2 (1998).
Title IX was passed to address the growing problem of sex discrimination in educational programs. See 118 Cong. Rec. 5804-15 (1972); H.R. Rep. No. 554, 92d Cong., 1st Sess. 1-3 (1972). Title IX provides that ”[n]o 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. § 1681(a).
. In Johnson v. Railway Express Agency, Inc., the Supreme Court explained a private-sector employee “clearly is not deprived of other remedies” and is not "limited to Title VII in search for relief.” 421 U.S. 454, 459, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975). By contrast, in Brown v. General Services Administration, the Court recognized an amendment to Title VII (42 U.S.C. § 2000e-16) that waived sovereign immunity for federal employees' access to relief from workplace discrimination was the “exclusive” remedy for federal employment discrimination claims. 425 U.S. 820, 829, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976). Imporlandy, the Court noted that this was unlike Johnson because Johnson held only that Title VII does not displace other remedies in private employment discrimination. Id. at 833, 96 S.Ct. 1961. In Cannon v. University of Chicago, the Supreme Court held that there was an implied private right of action for victims of sex discrimination by universities receiving federal funding. 441 U.S. 677, 703-10, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979) (applying Title IX to applicant of medical school that was rejected based on sex notwithstanding that Title IX does not "expressly authorize” a private right of action). In North Haven Board of Education v. Bell, the Supreme Court clarified that Title IX’s prohibition of sex discrimination applied not only to students, but also to "[ejmployees who directly participate in federal programs or who directly benefit from federal grants, loans or contracts,” thereby broadening the scope of Title IX to include employment discrimination. 456 U.S. 512, 520, 102 S.Ct. 1912, 72 L.Ed.2d 299 (1982). North Haven recognized Congress provided a “variety of remedies, at times overlapping, to eradicate” private-sector employment discrimination. Id. at 535, 102 S.Ct. 1912 n.26. In Franklin v. Gwinnett County Public Schools, the Court held that money damages were available for a student-plaintiff filing an action for sexual harassment under Title IX. 503 U.S. 60, 72-76, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992) (resolving circuit split and “concluding] that a damages remedy is available for an action brought to enforce Title IX”).
. 544 U.S. 167, 171, 125 S.Ct. 1497, 161 L.Ed.2d 361 (2005).
. Id. at 175, 125 S.Ct. 1497 (citing Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 283-84, 286-87, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998)).
. 66 F.3d 751, 754 (5th Cir. 1995).
. Id. at 754.
. Id.
. Id. at 756.
. Id. at 754.
. See Waid v. Merrill Area Pub. Sch., 91 F.3d 857, 862 (7th Cir. 1996).
. 31 F.3d 203, 207 (4th Cir. 1994).
. Id.
. Id. at 205-06.
. Ivan v. Kent St. Univ., No. 94-4090, 1996 WL 422496, at *3 n. 10 (6th Cir. 1996) (overruling district court conclusion that Title VII displaces an individual’s private remedy under Title IX); accord Lipsett v. Univ. of Puerto Rico, 864 F.2d 881, 896-97 (1st Cir. 1988).
. 850 F.3d 545, 563 (3d Cir. 2017). The Court notes that this case involved a medical resident. Defendant, in briefing, suggests that medical residents are students. However, the Court still finds these cases as applicable in the employment discrimination context because the courts often consider the medical residents as employees or employee-student mix.
. Id. at 560 (citing Johnson v. Ry. Express Agency, Inc., 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975); Brown v. Gen. Servs. Adm., 425 U.S. 820, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976); Cannon v. Univ. of Chi., 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979); N. Haven Bd. of Educ. v. Bell, 456 U.S. 512, 102 S.Ct. 1912, 72 L.Ed.2d 299 (1982); Franklin v. Gwinnett Cty. Pub. Sch., 503 U.S. 60, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992); Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 125 S.Ct. 1497, 161 L.Ed.2d 361 (2005)).
. Mercy Catholic Med. Ctr., 850 F.3d at 562.
. Id.
. Id. (citing N. Haven, 456 U.S. at 520, 102 S.Ct. 1912; Cannon, 441 U.S. at 694, 99 S.Ct. 1946).
. Id. at 562-63 (citing Jackson, 544 U.S. at 171, 125 S.Ct. 1497).
. Id.
. Id.; see also Kazar v. Slippery Rock Univ. of Pa., No 16-2161, 679 Fed.Appx. 156, 2017 WL 587984 (3d Cir. Feb. 14, 2017). The Third Circuit opinion assumed without deciding that Title IX may be used to bring an employment discrimination claim. However, Judge Shwartz wrote in concurrence to provide an analysis of the Supreme Court precedent relevant to whether Title VII displaces Title IX. Id. at 164-66, 2017 WL 587984, at *7-8 (Shwartz, J„ concurring). Judge Shwartz noted first, the Supreme Court recognized in North Haven Board of Education v. Bell that Title IX covers employment discrimination, and in Cannon v. Chicago, it recognized that there is a private right of action for employment discrimination. 456 U.S. 512, 525, 535-36, 102 S.Ct. 1912, 72 L.Ed.2d 299 (1982); 441 U.S. 677, 696, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979). Second, the Supreme Court recognized in Johnson v. Railway Express Agency Inc. that Title VII was not the exclusive remedy for employment discrimination. 421 U.S. 454, 459, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975), Third, the Supreme Court has recognized that Title IX and Title VII are vastly different statutes. Kazar, 679 Fed.Appx. at 165, 2017 WL 587984, at *7 (citing Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 175, 125 S.Ct. 1497, 161 L.Ed.2d 361 (2005)) (noting the difference in offenders, statute of limitations, remedies, and goals of the statutes). Fourth, because many circuits apply Title VII standards to Title XI cases, there is a recognized parity between Title VII and Title IX, Id. Fifth, although the Supreme Court'has held that Congress's enactment of a comprehensive scheme to address a problem may demonstrate “congressional intent to preclude” seeking remedies via other statutes, that principle was not applicable to Title IX because Title IX was enacted after Title VII. Id. at 165, 2017 WL 587984, at *8, Thus, Judge Shwartz ultimately concluded that Title VII did not displace Title IX for recovery in the employment discrimination1 context.
.This position is also consistent with the holdings of a number of recent district court cases. See, e.g., Winter v. Pa. St. Univ., 172 F.Supp.3d 756, 774-75 (M.D. Pa. 2016) (holding Title VII did not displace sex discrimination claim brought under Title IX by male former university professor terminated following sexual harassment investigation); Russell v. Nebo Sch. Dist., No. 16-00273, 2016 WL 4287542 (D. Utah Aug. 15, 2016) (con-
.This is only further propounded by subsequent amendments to Title VII eliminating an exemption for higher education employees from pursuing a Title VII claim. As the Supreme Court explained in 1990 in University of Pennsylvania v. EEOC, 493 U.S. 182, 189-90, 110 S.Ct. 577, 107 L.Ed.2d 571 (1990) (citations omitted), when Title VII was enacted originally in 1964, it exempted an “educational institution with respect to the employment of individuals to perform work connected with the educational activities of such institution." Eight years later, Congress eliminated that specific exemption by enacting § 3 of the Equal Employment Opportunity Act of 1972, 86 Stat. 103. This extension of Title VII was Congress’ considered response to the widespread and compelling problem of invidious discrimination in educational institutions.
. See Johnson v. Ry. Express Agency, Inc., 421 U.S. 454, 459, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975) ("Despite Title VII’s range and its design as a comprehensive solution for the problem of invidious discrimination in employment, the aggrieved individual clearly is not deprived of other remedies he possesses and is not limited to Title VII in his search for relief. The legislative history of Title VII manifests a congressional intent to allow an individual to pursue independently his rights under both Title VII and other applicable state and federal statutes.”) (citation omitted).
. Mercy Catholic Med. Ctr., 850 F.3d at 564 (citing Johnson, 421 U.S. at 461, 95 S.Ct. 1716).
. See Roberts v. Colo. St. Bd. of Agric., 998 F.2d 824, 832 (10th Cir. 1993); Mabry v. St. Bd. of Comm. Colls. & Occupational Educ., 813 F.2d 311, 316 n.6 (10th Cir. 1987).
. Roberts, 998 F.2d at 832.
. 858 F.3d 1307, 1315 n.8 (10th Cir. 2017).
. Kazar, 679 Fed.Appx. at 165, 2017 WL 587984, at *7.
. N. Haven Bd. of Educ. v. Bell, 456 U.S. 512, 520, 102 S.Ct. 1912, 72 L.Ed.2d 299 (1982).
. Id. at 537, 102 S.Ct. 1912 (emphasis in original).
. 465 U.S. 555, 574-75, 104 S.Ct. 1211, 79 L.Ed.2d 516 (1984).
. Pub. L. 100-259, 102 Stat. 28.
. See 20 U.S.C. § 1687.
. S. Rep. No. 100-64, at 6 (1987) (emphasis added). Defendant contends the legislative history is cited out of context. It goes on to offer a statement of Senator Bayh in 1972 during the congressional debates over the bill containing Title IX. 118 Cong. Rec. 5803 (daily ed. Feb. 28, 1972). He stated "[m]ore specifically, the heart of this amendment is a provision banning sex discrimination in educational programs receiving Federal funds. The amendment would cover such crucial aspects as admissions procedures, scholarships, and faculty employment, with limited exceptions.” Id. (emphasis added). Defendant emphasizes the word "faculty employment,” yet fails to even acknowledge the words "limited exceptions” immediately following. The Court finds this is not a limiting statement, but rather provides examples of some of the things that Title IX was seeking to protect.
. S. Rep. No. 100-64, at 17 (1987).
. S. Rep. No. 100-64, at 4 (1987).
. 20 U.S.C. § 1681(a) (emphasis added).
. N. Haven Bd. of Educ. v. Bell, 456 U.S. 512, 521, 102 S.Ct. 1912, 72 L.Ed.2d 299 (1982).
. Cannon v. Univ. of Chi., 441 U.S. 677, 703, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979).
. See Walters v. President & Fellows of Harvard College, 601 F.Supp. 867, 868 (D. Mass. 1985); Urie v. Yale University, 331 F.Supp.2d 94, 97-98 (D. Conn. 2004).
. S. Rep. No. 100-64, at 17 (1987).
. 968 F.Supp. 20, 25 (D.N.H. 1997).
. Id.
. Id.
. S. Rep. No. 100-64, at 17 (1987).
. N. Haven Bd. of Educ. v. Bell, 456 U.S. 512, 521, 102 S.Ct. 1912, 72 L.Ed.2d 299 (1982).
. 526 U.S. 629, 652, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999).
. See id. (considering student sexual harassment claim); J.M. ex rel. Morris v. Hilldale Indep. Sch. Dist. No. 1-29, 397 Fed.Appx. 445, 450 (10th Cir. 2010) (considering student sexual harassment claim); K.T. v. Culver-Stockton Coll., No 16-165, 2016 WL 4243965, at *6 (E.D. Mo. Aug. 11, 2016) (considering sexual harassment claim of student recruit); Johnson v. Indep. Sch. Dist. No. 47, 194 F.Supp.2d 939, 946 (D. Minn. 2002) (considering student sexual harassment claim).
.Mabry v. St. Bd. of Comm. Colls. & Occupational Educ., 813 F.2d 311, 316 n.6 (10th Cir. 1987) ("There is a well-developed body of case law concerning employment-related sex discrimination under Title VII; courts should turn to that case law for guidance if confronted with an employment-related allegation of discrimination under Title IX.”).
. 544 U.S. 167, 125 S.Ct. 1497, 161 L.Ed.2d 361 (2005). Any language reflecting a "systemic denial” of access to educational benefits is notably absent from the Title IX claim asserted in Jackson for employment retaliation.
. Admittedly, this Court improperly applied this standard in ruling on Defendant’s Rule 50(a) motion, but as explained in Part II. B.l.c.i. below, Plaintiff did not respond to this argument at the Rule 50(a) stage and the Court now has the benefit of complete briefing on the issue.
. Doc. 208 at 14.
. See United Int’l Holdings, Inc. v. Wharf (Holdings) Ltd., 210 F.3d 1207, 1228 (10th Cir. 2000); see Fed. R. Civ. P. 50(a)-(b).
. Fed. R. Civ. P. 12(h)(3).
. Pueblo of Jemez v. United States, 790 F.3d 1143, 1151 (10th Cir. 2015) ("The defense of sovereign immunity is jurisdictional in nature, depriving courts of subject-matter jurisdiction where applicable.”).
. Franklin v. Gwinnett Cty. Pub. Schs., 503 U.S. 60, 72, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992).
. In Jackson v. Birmingham Board of Education, the Supreme Court considered the issue of notice in the context of the Spending Clause’s notice requirement. 544 U.S. 167, 181, 125 S.Ct. 1497, 161 L.Ed.2d 361 (2005). Private Title IX damages actions are available only if the funding recipient had adequate notice it could be liable for the conduct alleged. Id. However, this Court finds the issue of notice for purposes of sovereign immunity and notice for purposes of Spending Clause are analogous.
. Id.
. See supra Part II.B.1.a.iii.
. Mabry v. St. Bd. of Comm. Colls. & Occupational Educ., 813 F.2d 311 (10th Cir. 1987); see also Gossett v. Okla. Bd. of Regents for Langston Univ., 245 F.3d 1172, 1176 (10th Cir. 2001).
. Mabry, 813 F.2d at 316.
. Id. at 316 n.6 (citation omitted).
. 850 F.3d 545, 558 (3d Cir. 2017).
. Id. at 563-66 (dismissing the hostile environment claim as time barred).
. 524 U.S. 274, 290, 118 S.Ct. 1989 (requiring proof that an "official who at a minimum” had "authority to address the alleged discrimination and to institute corrective measures on the recipient's behalf” had "actual knowledge of discrimination in the recipient’s program” and failed to adequately respond).
. Mercy Catholic Med. Ctr., 850 F.3d at 565-66.
. Doc. 245 at 6 (“Again, if a student or faculty member was experiencing discrimination within one of these operations, thus making it difficult or impossible for that student or educational employee to fulfill their educational goals, such student or faculty member’s claim would be covered by Title IX.”).
. 526 U.S. 629, 652, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999).
. See 42 U.S.C. § 2000e-2(a)(1).
. Meritor Sav. Bank v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986); Harris v. Forklift Sys. Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993).
. Hernandez v. Valley View Hosp. Ass'n, 684 F.3d 950, 957 (10th Cir. 2012).
. Chavez v. New Mexico, 397 F.3d 826, 833 (10th Cir. 2005).
. Morris v. City of Colo. Springs, 666 F.3d 654, 664 (10th Cir. 2012); Fugett v. Security Transp. Servs., Inc., 147 F.Supp.3d 1216, 1232 (D. Kan. 2015).
. Nieto v. Kapoor, 268 F.3d 1208, 1219 (10th Cir. 2001) (citation omitted).
. Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998).
. Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998).
. Escue v. N. Okla. Coll., 450 F.3d 1146, 1152 (10th Cir. 2006).
. See id.
. See id.
. Murrell v. Sch. Dist. No. 1 Denver, Colo., 186 F.3d 1238, 1247 (10th Cir. 1999).
. Id. at 1247.
. Id.
. Id. at 1248.
. Id. at 1247.
. Id. (providing the example of halting abuse through "transferring the harassing student to a different class, suspending him, curtailing his privileges, or providing additional supervision”).
. See Warren v. Reading Sch. Dist., 278 F.3d 163, 174 (3d Cir. 2002) (holding principal as appropriate person to report harassment to while declining to find the school guidance counselor as an appropriate person because he did not have authority over the accused harasser); Ross v. Univ. of Tulsa, 180 F.Supp.3d 951 (N.D. Okla. 2016) (holding campus police were appropriate person because they had the authority to institute corrective measures aimed at ending harassment); Burtner v. Hiram Coll., 9 F.Supp.2d 852, 856 (N.D. Ohio 1998) (holding there was no actual notice to Hiram until student was leaving school, which was unrelated to the appropriate person standard).
. Escue v. N. Okla. Coll., 450 F.3d 1146, 1152 (10th Cir. 2006).
. PL’s Ex. 12.
. Id.
. Escue, 450 F.3d at 1154.
. 511 F.3d 1114, 1119 (10th Cir. 2008).
. The Tenth Circuit suggests that harassment off school grounds may create liability under Title IX where the school is in control over the harasser and the environment in which the harassment occurs, and there is a "nexus” between the out of school conduct and the harassment. Rost v. Steamboat Springs RE-2 Sch. Dist., 511 F.3d 1114, 1121 n.1 (10th Cir. 2008); see also Weckhorst v. Kan. St. Univ., No. 16-2255, 241 F.Supp.3d 1154, 2017 WL 980456 (D. Kan. Mar. 14, 2017) (analyzing Tenth Circuit case law regarding off campus conduct and Title IX liability).
.This was further corroborated in an email sent from Giles to Johnson stating that in the September 2013 meeting "M, Fox said I [Giles] sexually harassed her in McCray Hall.” Pi’s Ex. 20.
. Doc. 200 at 22:14-16.
. Pi’s Ex. 10.
. Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 648, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999).
. Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998).
. Doc. 201 at 15:7-15.
. Defendant cites at length Helm v. Kansas, 656 F.3d 1277 (10th Cir. 2011), as analogous to the facts of this case, In Helm, the allegations of sexual harassment were vague, including only allegations that the alleged harasser made the alleged victim uncomfortable and the relationship had become inappropriate. Id. at 1281. There were no details involved. Id. The alleged victim also said the matter was resolved, so no action was taken. Id. Once more specific allegations were made, there were corrective measures taken including an investigation, disciplinary proceeding, and a reassignment. Here, there were sufficient details of the conduct between Giles and Plaintiff as well as evidence that the words sexual harassment were used. Yet there was no investigation or discipline, and the only remedial measure was to have the women
. Pi's Ex. 17.
. Pi's Ex. 37.
. Johnson admitted in her testimony that Plaintiff was subject to a sexually hostile work environment when she came forward to complain to Johnson. This was further corroborated by an audio recording Fox made of a conversation between she and Johnson, where Johnson admitted as much. Pi’s Ex. 57bb.
. Pi’s Ex. 4, 10.
. Defendant cites Rost v. Steamboat Springs RE-2 School District, 511 F.3d 1114, 1122 (10th Cir. 2008), for the proposition that the school is not charged with interviewing witnesses. However, the Court finds this case distinguishable. Whereas Rost involved school children, these were adults who were employees and undoubtedly should be held to a higher standard of conduct. Rost also involved vague allegations that the victim was being "bothered.” The school did not conduct independent interviews in Rost because the police were called. Here, there was a handwritten statement outlining the allegations and even stating that harassment was being alleged. Unlike in Rost, the police never conducted interviews in lieu of Defendant conducting an interview. In light of the circumstances, refusal to interview any witnesses was a clearly unreasonable response given that Fox’s written statement included the word “harassment.”
. Pi’s Ex. 24.
. Id.
. Pl’s Ex. 57bb.
. Harsco Corp. v. Renner, 475 F.3d 1179, 1186 (10th Cir. 2007); Dick v. Phone Directories Co., 397 F.3d 1256, 1263 (10th Cir. 2005) (citing Seymore v. Shawver & Sons, Inc., 111 F.3d 794, 798 (10th Cir. 1997)).
. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79-80, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998).
. Id. at 81.
. Id. at 80-81.
. Id. at 80.
. Id. at 80-81.
. Id.
. See Dick, 397 F.3d at 1265.
. Id. ("[T]he fact that the harasser is homosexual may support a finding that her conduct was motivated by sexual desire.'').
. Id. ("But a plaintiff need not, in every first-evidentiary-route case, establish that her harasser is homosexual in order to demonstrate that the harassing conduct was motivated by sexual desire.”).
. Doc. 210 at 5.
. See O’Shea v. Yellow Tech. Serve., Inc., 185 F.3d 1093, 1097 (10th Cir. 1999).
. Id. at 1097; see also Chavez v. New Mexico, 397 F.3d 826, 833 (10th Cir. 2005) (“The question then becomes whether Plaintiffs can use a substantial amount of arguably gender-neutral harassment to bolster a smaller amount of gender-based conduct on summary judgment. Our precedents say that they can.”).
. Chavez, 397 F.3d at 833 (citing O’Shea, 185 F.3d at 1102).
. Hernandez v. Valley View Hosp. Ass'n, 684 F.3d 950, 957 (10th Cir. 2012) (citing Harris v. Forklift Sys. Inc., 510 U.S. 17, 22, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)).
. See supra Part II. B.1.c.ii; II.B.2.a (outlining testimony relating to sexually charged conduct and comments, including non-consensual hair touching, rubbing against Plaintiff in the bathroom, sexually charged comments, and Giles wiping her crotch in front of Plaintiff).
. Compare Hernandez, 684 F.3d at 959 (finding sufficient evidence of hostile work environment where plaintiff was giving specific examples of her supervisors' racial jokes, identifying general time frames, and providing the relevant content and context of these comments) with Ford v. West, 222 F.3d 767, 777 (10th Cir. 2000) (finding insufficient allegations of harassment where the plaintiff “baldly assert[ed] he was continuously subjected to racial slurs,” and provided no record citations to any "content, context or date of such slurs.”).
. 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986).
. Id. at 59-60.
. Rick Fox and Martha Fox both testified that Giles was at the end of the street. Doc. 200 at 86:12-14; Doc. 201 at 115:22-23.
. Doc. 127 at 25.
. Morris v. City of Colo. Springs, 666 F.3d 654, 664 (10th Cir. 2012).
. Chavez v. New Mexico, 397 F.3d 826, 833 (10th Cir. 2005) (quoting O'Shea v. Yellow Tech. Servs., Inc., 185 F.3d 1093, 1098 (10th Cir. 1999)).
. Morris, 666 F.3d at 664 (quoting Harsco Corp. v. Renner, 475 F.3d 1179, 1187 (10th Cir. 2007)).
. Id. (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998)).
. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993).
. Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998).
. Id. (citation omitted).
. Nieto v. Kapoor, 268 F.3d 1208, 1219 (10th Cir. 2001) (citation omitted).
. Smith v. Nw. Fin. Acceptance, Inc., 129 F.3d 1408, 1416-17 (10th Cir. 1997) (stating that the plaintiff was “not required to produce evidence of physical abuse or contact to establish a hostile work environment”).
. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81-82, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998).
. Further, to the extent that physical contact strengthens Plaintiff’s case, there was evidence of other physical contact between Giles and Plaintiff. Giles rubbed against Plaintiff in a bathroom stall in McCray Hall. Defendant invites the Court to find this as "manufactured” testimony, but it was for the jury to decide the credibility of Plaintiff's testimony, Viewing this evidence in the light most favorable to Plaintiff, this was non-consensual, intentional, physical contact of a sexual nature.
. See supra Part II. B.1.c.ii; II.B,2.a (outlining Plaintiffs testimony that Giles would wipe her crotch at the timeclock, Giles asked Plaintiff about' her sexual performance with her husband, Giles asked Plaintiff whether she had been with a woman, Giles stated she wanted to taste Plaintiff, Giles made a "hu-hu-hu” noise while stating she had practiced it all night for her, Giles stated she could make Plaintiff feel better than her husband, and Butler Brown wiped her crotph and told Plaintiff to "picture this”).
. See supra Part.II.B.2.b.
. Doc. 200 at 77:14.
. Pi’s Ex. 57.
. See, e.g,, Doc. 201 at 48: 17 ("I agree that it was a hostile environment.”); Doc. 201 at 48:4-13 (stating in deposition that Fox was subjected to a sexually hostile work environment that was pervasive enough to change the nature of her work environment).
. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 673 (10th Cir. 1998).
. Id.
. Id.
. Id. at 676.
. Id. at 676.
. See supra Part II.B.1.d.
. Defendant suggests that this Court has already found Defendant's response was reasonable because at summary judgment, this Court ruled Defendant did not condone or encourage Gile's behavior. This finding was made in relation to the retaliation claim, which has different standards. This Court has not ruled upon the sufficiency of Defendant’s response for purposes of actual or constructive notice and whether its response was reasonable. In fact, this was a genuine issue of material fact at summary judgment. Doc. 127 at 22-23 ("Whether PSU’s response to Plaintiff's report was adequate depends on when PSU had notice of her complaint. If Plaintiff complained to Malle repeatedly and reported sexual harassment in September 2013, it would appear that PSU did not adequately investigate her complaint since it did not begin an investigation until her February 2014 report. If, on the other hand, her first report of sexual harassment was on February 19, 2014, it will be a question for a jury to determine whether the investigation conducted by Johnson was adequate.”). Defendant's attempt to twist this Court's wording and findings is not well received. Thus, although Malle and Endicott may not have condoned Giles’s behavior, this does not mean the response was reasonable in light of the allegations of sexual harassment.
. Fed. R. Civ. P. 59(a)(1)(A).
. See Unit Drilling Co. v. Enron Oil & Gas Co., 108 F.3d 1186, 1193 (10th Cir. 1997).
. Franklin v. Thompson, 981 F.2d 1168, 1171 (10th Cir. 1992).
. M.D. Mark, Inc. v. Kerr-McGee Corp., 565 F.3d 753, 762-63 (10th Cir. 2009) (quoting Anaeme v. Diagnostek, Inc., 164 F.3d 1275, 1284 (10th Cir. 1999)).
. Griffin v. Strong, 983 F.2d 1540, 1543 (10th Cir. 1993).
. See Henning v. Union Pac. R.R., 530 F.3d 1206, 1216-17 (10th Cir. 2008) (citing Fed. R. Civ. P. 61).
. Blanke v. Alexander, 152 F.3d 1224, 1236 (10th Cir. 1998).
. See Prager v. Campbell Cty. Mem’l Hosp., 731 F.3d 1046, 1062 (10th Cir. 2013); Capstick v. Allstate Ins. Co., 998 F.2d 810, 820 (10th Cir. 1993).
. Blanke, 152 F.3d at 1236 (citations and quotations omitted).
. J.M. v. Hilldale Indep. Sch. Dist. No. 1-29, 397 Fed.Appx. 445, 460 (10th Cir. 2010) (citing N. Am. Specialty Ins. Co. v. Britt Paulk Ins. Agency, Inc., 579 F.3d 1106, 1113 (10th Cir. 2009)).
. N. Am. Specialty Ins. Co., 579 F.3d at 1113.
. Medina v. District of Columbia, 643 F.3d 323, 326 (D.C. Cir. 2011) (quoting Kassman v. Am. Univ., 546 F.2d 1029, 1033 (D.C. Cir. 1976) (per curiam)).
. J.M., 397 Fed.Appx. at 460 (citation omitted),
. Ridgell-Boltz v. Colvin, 565 Fed.Appx. 680, 684 (10th Cir. 2014); see also Teutscher v. Woodson, 835 F.3d 936, 954 (9th Cir. 2016) (citing Medina, 643 F.3d at 326; Indu Craft, Inc. v. Bank of Baroda, 47 F.3d 490, 497 (2d Cir. 1995)).
. Matrix Grp. Ltd. v. Rawlings Sporting Goods Co., 477 F.3d 583, 592 (8th Cir. 2007) (citing Indu Craft, Inc., 47 F.3d at 497).
. Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 286, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998).
. See Mabry v. St. Bd. of Comm.Colls. & Occupational Educ., 813 F.2d 311, 316 (10th Cir. 1987).
. Doc. 202 at 17:4-7.
. See Indu Craft, Inc., 47 F.3d at 497 (allowing award of $2 million on breach of contract claim and $1.25 million on tort claim redressing the same wrongdoing because expert testified that net total of $3.25 million worth of damage).
. See supra Part II.B.1.c. (discussing severity or pervasiveness of hostile environment in Title IX context), II.B.2.d. (discussing severe, physically threatening, humiliating nature of conduct in Title VII context); see also Smith v. Nw. Fin. Acceptance, Inc., 129 F.3d 1408,
. 967 F.Supp. 431 (D. Colo. 1996).
. 883 F.2d 842 (10th Cir. 1989).
. Id. at 437.
. Id.
. Id.
. Id.
. Id.
. 883 F.2d 842, 875 (10th Cir. 1989).
. Id.
. Id.
. Id.
. Id.
. See id.
. Defendant also cited a number of "more recent” cases for the proposition that remitti-tur is warranted. However, the Court finds these cases distinguishable. Cline v. Wal-Mart Stores, Inc., 144 F.3d 294 (4th Cir. 1998) (remitting a jury award in a demotion case to $10,000 from $117,500 where there was no evidence of physical symptoms, no evidence of medication, no evidence of an inability to cope at work, and only suggestions of emotional trauma); MacMillan v. Millennium Broadway Hotel, 873 F.Supp.2d 546, 563
. Defendant extensively argues Rick Fox was not credible because he stood to gain financially from the trial. The Court does not consider such an argument as it is an improper credibility determination at the post-trial stage. Griffin v. Strong, 983 F.2d 1540, 1543 (10th Cir. 1993).
. Defendant argues that Plaintiff did not have corroborating medical testimony. However, this is not required, and the jupy instruction says as much. Jury Instruction No. 13 ("Evidence of mental anguish need not be corroborated by doctors, psychologists....”),
. 463 Fed.Appx. 709 (10th Cir. 2011).
. Id. at 723.
. Id. (citing Smith v. Nw. Fin. Acceptance, Inc., 129 F.3d 1408, 1416-17 (10th Cir. 1997) (considering the nature of the remarks made to the plaintiff, the nature of the harm suffered by the plaintiff, and the context of the discriminatory behavior); Malloy v. Monahan, 73 F.3d 1012, 1017 (10th Cir. 1996) (determining that "the award was adequately grounded in the evidence”); Fitzgerald v. Mountain States Tel. & Tel. Co., 68 F.3d 1257, 1261, 1265-66 (10th Cir. 1995) (determining that damages awards were excessive based on a review of the record)).
. Id.
. Id. at 723-24.
. See also Smith, 129 F.3d at 1416-17 (upholding a $200,000 award in a sexual harassment case).
. See Henning v. Union Pac. R.R., 530 F.3d 1206, 1216-17 (10th Cir. 2008) (citing Fed. R. Civ. P. 61).
. Doc. 200 at 10:23-11:1, 12:2-9.
. Doc. 202 at 14:22-15:2; 17:23-18:1.
. Defendant also speculates that this jury was biased by news of a video that surfaced during this trial of then-presidential candidate Donald J. Trump making lewd sexual comments about women.
. Jury Instruction No. 13.
. Doc. 81 at 2.
. See Doc. 249.
. Doc. 215 at 15.
. See, e.g., Doc. 200 at 3:3:13-15 (quoting verbatim the Fourteenth Amendment).
. Doc. 202 at 16: 3-14, 20-25; 17: 1-10.
. The Court finds Defendant’s citation to McInnis v. Town of Weston 458 F.Supp.2d 7, 19 (D. Conn. 2006) unpersuasive. There the court held a jury award of $860,000 excessive given the plaintiff's counsel suggestion of a retirement income projection of $960,000 for only emotional distress evidence. But here, Plaintiff’s counsel suggested a range that was not based on salary, wage, or retirement losses.
. Doc. 202 at 16: 3-14, 20-25; 17: 1-10.
. Id.
. Lambert v. Midwest City Memorial Hosp. Auth., 671 F.2d 372, 375-76 (10th Cir. 1982).
. See Jury Instruction No. 13.
. Defendant fails to cite to the record and fails to demonstrate how the complained-of impeachment was improper. It was proper to question whether PSU attempted to influence Sherry Vineyard's testimony by granting her a shift change. It was proper to examine Giles and McGowan about an allegation that they gave a "penis cup” to their own employee (of a cleaning business they owned), to impeach their testimony that they had no knowledge or awareness of sexual harassment. It was proper to impeach Giles testimony that minimized her role in engaging in threatening or hostile behavior towards Plaintiff and Rick Fox, with an allegation that she angrily kicked a trashcan in a courtroom.
. As the Court explained at length in an earlier section of this order, see supra Part II.B.2.a, given the significant evidentiary overlap of the Title VII retaliation claim and the Title VII hostile work environment claim, the evidence Defendant complains about was relevant to both the dismissed Title VII retaliation claim and the surviving Title VII claim.
. In its limine order, the Court reserved ruling on this admission of this evidence, advising the parties to take up the issue with the Court during trial, when the Court would have context in which to weigh the probative value of the evidence with its prejudicial effect, as Rule 403(b) requires. At trial, the Court conducted the Rule 403(b) balancing and found the evidence more prejudicial than probative. Because Defendant failed to cite to the transcript on this point, it is unclear whether Defendant raised a contemporaneous objection to preserve this evidentiary ruling for appeal.
. Defendant complains that Plaintiff never mentioned this incident to Johnson, nor in her EEOC complaint, nor in her Complaint in this case, but raised it for the first time in her deposition. Needless to say, it would have been proper for Defendant to impeach Plaintiff with the lateness of this revelation, so the jury could determine Plaintiff's credibility. Because Defendant failed to cite to the record, the Court does not know whether Defendant impeached Plaintiff, but nothing precluded Defendant from impeaching Plaintiff with this. In any event, this is not a ground for new trial.
. Krumm v. Holder, 594 Fed.Appx. 497, 501 (10th Cir. 2014) (quoting Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 841 (10th Cir. 2005)).
. D.Kan.Local Rule 7.6(a)(2).
. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 672 (10th Cir. 1998).
.See RMD, LLC v. Nitto Americas, Inc., No. 09-2056-JAR, 2012 WL 1033542, at *8 (D. Kan. Mar. 27, 2012) ("The court will not sift through the record in an attempt to locate or articulate arguments for [the party’s] counsel.”).
.Doc. 150.
. Doc. 202 at 5:7 (emphasis added).
. Doc. 202 at 5:18-21.
. Doc. 201 at 47:14-19.
. Defendant did not attempt to cross-examine Plaintiff with such recording, and the Court did not forbid Defendant from doing so, Defendant's counsel did question Plaintiff about whether she told Johnson she was being recorded during the meeting, and Plaintiff alleged she had an "under surveillance” sticker on her shirt. However, Defendant’s counsel did not seek to admit other parts of the audio recording nor place in context, any statements recorded in the audio clip played by Plaintiff.
. Doc. 200 at 90:1-21 (referring to Pl’s Ex. 57bb).
. Doc. 201 at 65-70.
. There is a dispute whether Plaintiffs counsel received the designations the night before Johnson’s testimony or during Johnson's testimony. Regardless, this was inadequate time to review the designation, so it was proper for the Court to give Plaintiff additional tíme for review. This is especially so in light of Johnson testifying in Defendant's case-in-chief, so it was not prejudicial.
.Defendant did not order trial transcript for its own witnesses. The Court was forced to rely on a rough transcript of Johnson’s direct examination in Defendant's case in chief.
. 798 F.2d 1313, 1321 (10th Cir. 1986).
. Id.
. Id. at 1322
. Id. (considering the pre-existing conditions instruction as "tending] to limit the amount of recoverable damages.”).
. 130 F.3d 1287, 1295 (8th Cir. 1997).
. Id.
. See, e.g., Hernandez v. Valley View Hosp. Ass’n, 684 F.3d 950, 957 (10th Cir. 2012) (“A dual standard asks both whether the plaintiff was offended by the work environment and whether a reasonable person would likewise be offended.”).
.The Court rejects Defendant’s argument that this-additional language was added after the deadline for submission of jury instructions. The Court in the Pretrial Order merely requested "proposed” instructions, and these were subject to change during both the informal and formal jury instruction conferences. Doc. 132 at 5.
. Jury Instruction No. 9 (emphasis added).
. See supra Part II.B.2.b. (explaining that the jury may properly consider both overtly and not overtly gender related conduct).
. O'Shea v. Yellow Tech. Serv’s., Inc., 185 F.3d 1093, 1097 (10th Cir. 1999); see also Chavez v. New Mexico, 397 F.3d 826, 833 (10th Cir. 2005) ("The question then becomes whether Plaintiffs can use a substantial amount of arguably gender-neutral harassment to bolster a smaller amount of gender-based conduct on summary judgment. Our precedents say that they can,”).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.