Jennings v. UNC

ON REHEARING EN BANC
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
MELISSA JENNINGS, 
Plaintiff-Appellant,
and
DEBBIE KELLER,
Plaintiff,
v.
UNIVERSITY OF NORTH CAROLINA, at
Chapel Hill; ANSON DORRANCE,
individually and as women’s soccer
coach at UNC; WILLIAM PALLADINO,
individually and as assistant women’s
soccer coach at UNC; CHRIS DUCAR,
individually and as assistant women’s
soccer coach at UNC; BILL PRENTICE,  No. 04-2447
individually and as athletic trainer at
UNC; MICHAEL K. HOOKER,
individually and as Chancellor at
UNC; SUSAN EHRINGHAUS, individually
and as assistant to the Chancellor at
UNC; RICHARD A. BADDOUR,
individually and as Director of
Athletics for UNC; BETH MILLER,
individually and as Senior Associate
Director of Athletics at UNC; JOHN
SWOFFORD, individually and as former
Director of Athletics for UNC; ALL
DEFENDANTS,
Defendants-Appellees. 
2 JENNINGS v. UNIVERSITY OF NORTH CAROLINA
Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
N. Carlton Tilley, Jr., Chief District Judge.
(CA-99-400-1)
Argued: October 25, 2006
Decided: April 9, 2007
Before WILKINS, Chief Judge, and NIEMEYER, WILLIAMS,
MICHAEL, MOTZ, TRAXLER, KING, GREGORY, SHEDD, and
DUNCAN, Circuit Judges.
Affirmed in part, vacated in part, and remanded by published opinion.
Judge Michael wrote the opinion, in which Chief Judge Wilkins,
Judge Motz, Judge Traxler, Judge King, Judge Gregory, Judge Shedd,
and Judge Duncan joined. Judge Gregory wrote a separate concurring
opinion, in which Judge Motz joined. Judge Niemeyer wrote a dis-
senting opinion, in which Judge Williams joined.
Judge Widener and Judge Wilkinson, being disqualified, did not par-
ticipate in this case.
COUNSEL
ARGUED: Daniel Francis Konicek, KONICEK & DILLON, P.C.,
Geneva, Illinois, for Appellant. Thomas J. Ziko, NORTH CARO-
LINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for
Appellees. ON BRIEF: Jeffrey T. Mitchell, KONICEK & DILLON,
P.C., Geneva, Illinois, for Appellant. Joyce S. Rutledge, Assistant
Attorney General, NORTH CAROLINA DEPARTMENT OF JUS-
TICE, Raleigh, North Carolina, for Appellees; Douglas E. Kingsbery,
THARRINGTON SMITH, L.L.P., Raleigh, North Carolina, for
Appellee Anson Dorrance, individually and as women’s soccer coach
at UNC.
JENNINGS v. UNIVERSITY OF NORTH CAROLINA 3
OPINION
MICHAEL, Circuit Judge:
Melissa Jennings, a former student and soccer player at the Univer-
sity of North Carolina at Chapel Hill (UNC or the University), claims
that her coach, Anson Dorrance, persistently and openly pried into
and discussed the sex lives of his players and made sexually charged
comments, thereby creating a hostile environment in the women’s
soccer program. Jennings sued UNC, Dorrance, Susan Ehringhaus
(Assistant to the Chancellor and legal counsel to UNC), and several
other individuals associated with the University, alleging violations of
Title IX of the Educational Amendments of 1972 (20 U.S.C. § 1681
et seq.), 42 U.S.C. § 1983, and the common law. The district court
awarded summary judgment to the defendants. After considering Jen-
nings’s appeal en banc, we vacate the summary judgment on her Title
IX claim, her § 1983 claim against Dorrance for sexual harassment,
and her § 1983 claim against Ehringhaus for sexual harassment based
on supervisory liability. The summary judgment on the remaining
claims and minor procedural rulings are affirmed.
I.
Because Jennings was the non-movant in the summary judgment
proceedings, we recite the facts, with reasonable inferences drawn, in
her favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). UNC has the country’s most successful women’s soccer pro-
gram at the college level. The UNC team, with Dorrance as head
coach, has won the most national championships in the history of the
sport. In light of this record, young women soccer players with excep-
tional talent covet the opportunity to play on Dorrance’s team. Dor-
rance personally recruited Jennings while she was in high school, and
she joined the UNC team at the start of her freshman year in August
1996. Jennings was one of four goalkeepers until Dorrance cut her
from the team in May 1998, at the end of her sophomore year. Jen-
nings was seventeen when she started playing for Dorrance, and he
was forty-five.
Once Jennings became a member of the UNC team, she was dis-
tressed to learn that Dorrance engaged in sexually charged talk in
4 JENNINGS v. UNIVERSITY OF NORTH CAROLINA
team settings. Dorrance bombarded players with crude questions and
comments about their sexual activities and made comments about
players’ bodies that portrayed them as sexual objects. In addition,
Dorrance expressed (once within earshot of Jennings) his sexual fan-
tasies about certain players, and he made, in plain view, inappropriate
advances to another. This behavior on Dorrance’s part occurred on a
regular basis, particularly during team warm-up time at the beginning
of practice. The sex-focused talk that Dorrance initiated or encour-
aged occurred at other times as well, or, as one player put it, "anytime
the team was together," whether "on a plane, in a car, or on a bus, in
a hotel, at practice, out of town, at events." J.A. 1066. Dorrance sub-
jected Jennings or her teammates to sexually charged inquiries and
comments in the following particulars.
In front of the entire team, Dorrance asked one player nearly every
day "who [her] fuck of the minute is, fuck of the hour is, fuck of the
week [is]," whether there was a "guy [she] ha[dn’t] fucked yet," or
whether she "got the guys’ names as they came to the door or . . . just
took a number." J.A. 1237-38, 1261-62. He asked a second player if
she was "going to have sex with the entire lacrosse team," and advised
a third, "[Y]ou just have to keep your knees together . . . you can’t
make it so easy for them." J.A. 1127. Dorrance frequently focused on
a fourth player’s sex life with questions such as whether she was
going to have a "shag fest" when her boyfriend visited and whether
she was "going to fuck him and leave him." J.A. 1238, 1248. The
coach "direct[ed] inquir[ies]" to a fifth player about the size of her
boyfriend’s genitalia. J.A. 1452.
During practice Dorrance regularly commented on certain players’
bodies, referring to their "nice legs," "nice rack[s]," breasts "bounc-
ing," "asses in spandex," and "top heav[iness]." J.A. 393, 1073, 1229,
1236. Dorrance also called a player "Chuck" (her name was Char-
lotte) because he believed that she was a lesbian. J.A. 1228. He
inquired pointedly in her presence about her sexual orientation, asking
"[D]oes she not like the guys?" J.A. 1283.
Dorrance disclosed his sexual fantasies about several players. He
told one player, Debbie Keller, that he would "die to be a fly on the
wall" the first time her roommate, another team member, had sex.
J.A. 1068. Dorrance admitted to Keller the reason for his fascination
JENNINGS v. UNIVERSITY OF NORTH CAROLINA 5
about how her roommate might react during sex: he believed the
young woman "was a very sexual person by nature," yet she was a
virgin who was "fighting her inner self" because she was "so reli-
gious" (a born-again Christian). J.A. 1070. Another incident in this
category occurred during a water break at practice, when Jennings
overheard Dorrance tell a trainer that he fantasized about having "an
Asian threesome" (group sex) with his Asian players. J.A. 1284-85.
Dorrance did not limit himself to inappropriate speech. He showed
overt affection — affection of the sort that was not welcomed — for
one player, Keller, in front of the entire team. He paid inordinate
attention to Keller, frequently brushing her forehead, hugging her,
rubbing her back, whispering in her ear, dangling a hand in front of
her chest, or touching her stomach. Dorrance took other undue liber-
ties with respect to Keller. For example, during one weight-lifting ses-
sion when the players were lightly clad, Dorrance called Keller over
to him and walked her outside "towards the stadium, putting his arms
around her." J.A. 1432. Also, one evening Dorrance telephoned for
Keller at home, and one of her roommates (not a soccer player) told
him that Keller was out with her boyfriend. Dorrance retorted, "What
is she doing, out having sex all over Franklin Street?" J.A. 1073. Dor-
rance told Keller that he "couldn’t hide his affection for [her]" and
said that "in a lifetime you should be as intimate with as many people
as you can." J.A. 1011.
Jennings listened as Dorrance focused on the sex life of one player
after another.1 Jennings sought desperately to avoid Dorrance’s ques-
1
Jennings herself heard most of the comments recounted above that
Dorrance made in front of the team. See J.A. 1229, 1236-38, 1248, 1261-
62, 1283. The statements that Dorrance asked a particular player whether
she was "going to have sex with the entire lacrosse team," J.A. 1127, and
that he advised another player "to keep [her] knees together," id., come
from Debbie Keller’s deposition, as the dissent notes, see post at 30 n.1.
Nevertheless, Jennings’s account of what was occurring is virtually the
same. See e.g., J.A. 1238 (Jennings testifying that Dorrance asked a
player, "How many guys in the [lacrosse] team did [you] fuck?"). Amy
Steelman, who played with Jennings, reported hearing, in a team setting,
Dorrance’s question to a player about the size of her boyfriend’s genita-
lia. Jennings did not testify about that incident, but it is nevertheless
6 JENNINGS v. UNIVERSITY OF NORTH CAROLINA
tions and ridicule about her personal life. She therefore tried to "stay
out of [his] radar" by not participating in the discussions. J.A. 1242.
She was targeted nevertheless. During a fall tournament in California
at the end of Jennings’s freshman season, Dorrance held one-on-one
meetings with players in his hotel room to assess their performance
for the season. Dorrance told Jennings that she was in danger of los-
ing her eligibility to play soccer if her grades did not improve. In the
midst of this discussion, Dorrance asked Jennings, "Who are you
fucking?" J.A. 1330. She replied that it was "[n]one of his God damn
business" what she did off field. J.A. 1325. As Jennings described the
scene, "I was 17 when he asked me that in a dark hotel room, knee-
to-knee, bed not made, sitting at one of those tiny tables." J.A. 1230.
She felt acutely uncomfortable.
Jennings again found herself the target of Dorrance’s sexual inqui-
ries in a warm-up session during her sophomore year. Some of the
players and Dorrance were discussing one player’s weekend, called
a "shag fest" by Dorrance, which ended with a young man crawling
out of her window. Attention turned to Jennings, who had spent the
same weekend with her boyfriend at another school. One player
asked, using Jennings’s nickname, "[W]ell, what about Trim’n?", J.A.
1246, and Dorrance immediately "chimed in," saying "[Y]es, what
about Trim’n?" J.A. 1252. The coach wanted to know whether Jen-
nings had "the same good weekend" as the player whose weekend he
had just described as a shag fest. J.A. 1248. Dorrance thus encouraged
the interrogation about personal sexual activity to "slide over" to Jen-
nings for several minutes. J.A. 1249, 1254-55. She felt humiliated and
refused to respond.
indicative of Dorrance’s pattern of asking abusive questions to a number
of different players. With respect to Keller, Jennings heard her say that
"she was uncomfortable and didn’t like the touching, the affection — the
over-affection she was receiving" from Dorrance. J.A. 1291. Jennings
witnessed some of Dorrance’s displays of affection toward Keller,
observing him "putting his arms around her." J.A. 1432-33. Finally,
although Dorrance made the "fly on the wall" comment to Keller before
Jennings joined the team, Jennings learned about it because players were
still discussing it after she arrived. J.A. 1237.
JENNINGS v. UNIVERSITY OF NORTH CAROLINA 7
Jennings felt "uncomfortable, filthy and humiliated" by Dorrance’s
persistent focus on sex and the sexual activities of his players. J.A.
1242. Dorrance’s questions and comments moved from girl to girl to
girl, putting Jennings in constant fear that she would be his target at
some point, as she was. Jennings could not escape the anxiety that she
felt and witnessed in others. She saw two players who were specifi-
cally targeted by Dorrance react with tears and facial expressions that
portrayed feelings of disgust or unhappiness. The player Dorrance
called "Chuck" was offended by his open focus on her sexual orienta-
tion. J.A. 1282-83. Amy Steelman, a player who was not specifically
targeted, was "very uncomfortable with [the] sexually charged envi-
ronment" that Dorrance had "created and encouraged." J.A. 1452. The
environment "was so damaging that it affected [Steelman’s] emo-
tional well-being, and [she] would frequently come home crying"
from practice. Id. Keller’s intense discomfort at Dorrance’s constant
touching and affection was plainly evident from her body language
and facial expression. Keller confirmed that Dorrance’s touching and
caressing "made [her] skin crawl" and made her "fe[el] dirty." J.A.
1145.
During the fall of her freshman year Jennings notified UNC about
the hostile sexual environment that Dorrance had created within the
women’s soccer program. She lodged a complaint in a meeting with
Susan Ehringhaus, legal counsel to the University and Assistant to the
Chancellor. Jennings "gave [Ehringhaus] a [complete] run-down"
about Dorrance’s persistence in talking about players’ sex lives when
the team was assembled for practice or other activities. J.A. 1343. She
reported her feelings of humiliation and discomfort. Ehringhaus dis-
missed these concerns and suggested that Jennings simply "work it
out" with Dorrance. J.A. 1341. Jennings’s complaint thus remained
unaddressed by the UNC administration.
Jennings stayed on the team until she was cut by Dorrance during
exams at the end of her sophomore year. He cited inadequate fitness
as the reason. Over the next several days, Jennings’s parents submit-
ted several complaints to the Chancellor’s office about Dorrance’s
regular involvement in discussions about the sexual activities of his
players. Thereafter, the Director of Athletics, Richard Baddour, con-
ducted an administrative review pursuant to UNC’s sexual harassment
policy. Dorrance admitted that he participated in group discussions
8 JENNINGS v. UNIVERSITY OF NORTH CAROLINA
with players about their sex lives, but claimed that his comments were
only "of a jesting or teasing nature." J.A. 1531. The review ended
with Athletic Director Baddour sending a letter of apology to Jen-
nings’s father and a brief, mild letter of reprimand to Dorrance. Bad-
dour wrote to Mr. Jennings on June 9, 1998, apologizing for
Dorrance’s "inappropriate . . . involvement in [sexual] discussions"
with his team members. J.A. 1531. Dorrance indicated his own apol-
ogy by counter-signing the letter. One day later, Baddour wrote to
Dorrance declaring it "inappropriate for [Dorrance] to have conversa-
tions with members of [the] team (individually or in any size group)
regarding their sexual activity." J.A. 1533.
In August 1998, at the start of Jennings’s junior year, she and Kel-
ler brought this action against UNC and several individuals associated
with the University, including Dorrance and Ehringhaus, asserting
(among others) claims under Title IX and § 1983. After the lawsuit
was filed, Jennings was threatened and harassed to the extent that
UNC officials warned her that they could not guarantee her safety on
campus. At UNC’s urging, she spent her senior year at another school
and was then awarded a UNC degree. Keller settled her claims and
took a dismissal with prejudice. Jennings’s case proceeded to the
entry of summary judgment in favor of the defendants. She appealed
and a divided panel of this court affirmed the judgment. Jennings v.
Univ. of N.C., at Chapel Hill, 444 F.3d 255 (4th Cir. 2006). We
vacated the panel decision and reheard the case en banc. Our review
of the district court’s grant of summary judgment is de novo. Hill v.
Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 283 (4th Cir.
2004) (en banc).
II.
Jennings claims that UNC discriminated against her in violation of
Title IX by allowing Dorrance, the women’s soccer coach, to subject
her to severe and pervasive sexual harassment in the women’s soccer
program. Title IX provides that "[n]o person . . . shall, on the basis
of sex, be excluded from participation in, be denied the benefits of,
or be subjected to discrimination under any education program or
activity receiving Federal financial assistance." 20 U.S.C. § 1681(a).
Discrimination under Title IX includes coach-on-student sexual
harassment that creates a hostile environment in a school sports pro-
JENNINGS v. UNIVERSITY OF NORTH CAROLINA 9
gram. See Franklin v. Gwinnett County Pub. Schs., 503 U.S. 60, 75
(1992) (stating that teacher’s sexual harassment of student is covered
by Title IX). A private right of action against the institution is implied
under Title IX, Cannon v. Univ. of Chicago, 441 U.S. 677, 709
(1979), and money damages are available as a remedy, Franklin, 503
U.S. at 76.
To establish a Title IX claim on the basis of sexual harassment, a
plaintiff must show that (1) she was a student at an educational insti-
tution receiving federal funds, (2) she was subjected to harassment
based on her sex, (3) the harassment was sufficiently severe or perva-
sive to create a hostile (or abusive) environment in an educational
program or activity, and (4) there is a basis for imputing liability to
the institution. See Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 66
(1st Cir. 2002). We look to case law interpreting Title VII of the Civil
Rights Act of 1964 for guidance in evaluating a claim brought under
Title IX. See, e.g., Davis v. Monroe County Bd. of Educ., 526 U.S.
629, 651 (1999); Franklin, 503 U.S. at 75.
A.
Jennings can establish the first element of her Title IX claim with-
out dispute: she was a student at UNC, an institution receiving federal
funds. On the second element of her claim, Jennings must proffer
facts showing that Dorrance subjected her to harassment (verbal in
this case) based on her sex. See 20 U.S.C. § 1681(a). Sexual harass-
ment occurs when the victim is subjected to sex-specific language that
is aimed to humiliate, ridicule, or intimidate. See Meritor Savings
Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986); Ocheltree v. Scollon
Prods., Inc., 335 F.3d 325, 331-32 (4th Cir. 2003). A coach’s sexually
charged comments in a team setting, even if not directed specifically
to the plaintiff, are relevant to determining whether the plaintiff was
subjected to sex-based harassment. See Spriggs v. Diamond Auto
Glass, 242 F.3d 179, 184 (4th Cir. 2001) (considering, in Title VII
case, hostile comments concerning African Americans in general as
well as similar comments directed specifically toward plaintiff).
UNC argues that Dorrance’s sex-focused comments were "of a jok-
ing and teasing nature" that did not amount to sexual harassment.
Appellees’ Br. at 22; see Faragher v. City of Boca Raton, 524 U.S.
10 JENNINGS v. UNIVERSITY OF NORTH CAROLINA
775, 788 (1998) (noting that "simple teasing [and] offhand com-
ments" do not amount to sexual harassment) (internal quotation marks
and citation omitted). The facts, when viewed in the light most favor-
able to Jennings, show that Dorrance’s persistent, sex-oriented discus-
sions, both in team settings and in private, were degrading and
humiliating to his players because they were women. His conduct
went far beyond simple teasing and qualified as sexual harassment.
See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81-82
(1998); Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993);
Ocheltree, 335 F.3d at 332.
Dorrance, in front of the entire team, frequently singled out indi-
vidual players to find out whether, with whom, and how often they
were having sex. He put the questions crudely and bluntly, asking, for
example, "[Who is your] fuck of the week[?]", J.A. 1237, "[Are you]
going to fuck [your boyfriend] and leave him[?]", J.A. 1248, and
"How many guys in the [lacrosse] team did [you] fuck?", J.A. 1238.
As Jennings expected, Dorrance ultimately asked her (albeit in pri-
vate) a similar question, "Who are you fucking?" J.A. 1330. Dorrance
even asked one player about the size of her boyfriend’s genitalia and
suggested to another that she "just had to keep [her] knees together."
J.A. 1127. Dorrance fixated on one player’s large breasts, pronounc-
ing that they made her top-heavy and gave her poor balance. These
sorts of questions and comments, which frequently carried the strong
suggestion of promiscuity, provoked in several players acute feelings
of humiliation and degradation that were directly linked to their gen-
der. The nature of Dorrance’s language, in other words, establishes
that he was targeting the young women because of their sex. See
Ocheltree, 335 F.3d at 332. Finally, Dorrance’s reckless comments
about his sexual fantasies — to a trainer that he would like to have
group sex with his Asian players and to Debbie Keller that he would
like to be a fly on the wall the first time one player had sex — assist
in demonstrating that his pronounced interest in discussing his play-
ers’ sex lives transcended simple teasing or joking. In short, Jennings
proffers sufficient facts for a jury to find that Dorrance subjected her
to sexual harassment.
B.
We next consider whether Jennings proffers facts to permit a find-
ing that Dorrance’s sex-based harassment was sufficiently severe or
JENNINGS v. UNIVERSITY OF NORTH CAROLINA 11
pervasive to create a hostile or abusive environment in the women’s
soccer program. Harassment reaches the sufficiently severe or perva-
sive level when it creates "an environment that a reasonable person
would find hostile or abusive" and that the victim herself "subjec-
tively perceive[s] . . . to be abusive." Harris, 510 U.S. at 21. Whether
gender-oriented harassment amounts to actionable (severe or perva-
sive) discrimination "depends on a constellation of surrounding cir-
cumstances, expectations, and relationships." Davis, 526 U.S. at 651
(quoting Oncale, 523 U.S. at 82). All the circumstances are examined,
including the positions and ages of the harasser and victim, whether
the harassment was frequent, severe, humiliating, or physically threat-
ening, and whether it effectively deprived the victim of educational
opportunities or benefits. See Davis, 526 U.S. at 650-51; Harris, 510
U.S. at 23. Evidence of a general atmosphere of hostility toward those
of the plaintiff’s gender is considered in the examination of all the cir-
cumstances. See Harris, 510 U.S. at 19 (considering harassment
directed at both plaintiff and her female co-workers); see also
Spriggs, 242 F.3d at 184 (stating that, "We are, after all, concerned
with the ‘environment’ of . . . hostility, and whatever the contours of
one’s environment, they surely may exceed the individual dynamic
between the complainant and [her harasser]."). These standards for
judging hostility ensure that Title IX does not become a "general
civility code." See Oncale, 523 U.S. at 80. "[S]imple teasing, offhand
comments, and isolated incidents (unless extremely serious) will not
amount to discriminat[ion]." Faragher, 524 U.S. at 788 (internal quo-
tation marks omitted). "Common sense, and an appropriate sensitivity
to social context, will enable courts and juries" to identify objectively
hostile or abusive conduct. Oncale, 523 U.S. at 81-82. Here, a jury
could reasonably find that Dorrance’s persistent sexual harassment
was sufficiently degrading to young women to create a hostile or abu-
sive environment.
Dorrance was not just any college coach. He was and still is the
most successful women’s soccer coach in U.S. college history, and he
has coached the national team. Dorrance thus had tremendous power
and influence over a player’s opportunity for achievement in the soc-
cer world, both at UNC and beyond. As Jennings put it, "[g]irls would
cut off their right arm to be [at UNC]" and play for Dorrance. J.A.
1227. Dorrance encouraged his players to confide in him about all
aspects of their personal lives, including the details of their sexual
12 JENNINGS v. UNIVERSITY OF NORTH CAROLINA
activities. He professed to them that he wanted to be a father figure.
In reality, Dorrance abused his power as coach to ask his players
questions a father would not ask; he pried into and talked openly
about his players’ sex lives in a way that was disrespectful and
degrading. The disparity in power between Dorrance and his players
trapped players into responding to his questions and enduring the
environment. See Crandall v. N.Y. College of Osteopathic Med., 87
F. Supp. 2d 304, 319 (S.D.N.Y. 2000) (denying summary judgment
in part because "unequal power relationship" between harasser and
victim could support a jury finding of a sexually hostile environment).
As the coach, Dorrance controlled everything: team membership,
position, playing time, and scholarship eligibility. Even Debbie Kel-
ler, the team captain and a star player, was acutely mindful of Dor-
rance’s enormous power and influence, and she took care not to
provoke him. Keller was troubled by Dorrance’s persistent focus on
sex. "[A]ll [of his] comments about his affection" for her, together
with the inappropriate touching, "made [her] skin crawl" and made
her "fe[el] dirty." J.A. 1145. Dorrance’s conduct put constant pressure
on Keller because she "didn’t want to tick him off to a point . . .
where he would take it out on [her] by not playing [her]." J.A. 1120.
Jennings similarly described the pressure on players to submit to Dor-
rance’s excessive intrusion into their sex lives: "[H]ow do you say
anything [to stop him?] . . . You are stuck between a rock and a hard
place." J.A. 1290.
Any age disparity between the harasser and his victim is also rele-
vant to gauging whether there was a hostile or abusive sexual envi-
ronment. Davis, 521 U.S. at 651. Here, Dorrance was a forty-five-
year-old man probing into and commenting about the sexual activities
of young women, some of whom, like Jennings, were as young as
seventeen. Indeed, Jennings felt the extra pressure of age difference
when Dorrance called her to his California hotel room to assess her
performance as a freshman player. Jennings describes the scene: "I
was 17 when he asked me [‘Who are you fucking?’] in a dark hotel
room, knee-to-knee, bed not made, sitting at one of those tiny tables."
J.A. 1230.
Jennings had good reason to fear that she too would be targeted by
Dorrance, for he had subjected her to a general environment of sexual
harassment. She had witnessed his degrading and persistent focus on
JENNINGS v. UNIVERSITY OF NORTH CAROLINA 13
the sex lives of other players. She observed Dorrance’s sex-based
humiliation of several of her teammates, and she heard his demeaning
comments. Dorrance openly accused at least three players of being
promiscuous, asking them degrading questions such as, "Is there a
guy you haven’t fucked yet?". J.A. 1261-62. Dorrance turned news
about visits by boyfriends into speculation about rampant sex. Thus,
he asked one player whether she was going to have a "shag fest" when
her boyfriend visited, and whether she was "going to fuck him and
leave him." J.A. 1248.
No aspect of his players’ sex lives appeared off limits for Dorrance.
He asked one player about the size of her boyfriend’s genitalia. He
mocked a lesbian player by calling her "Chuck" and asking in front
of the team why "she [did] not like the guys." J.A. 1283. He expressed
his fantasies to a trainer about wanting to have group sex with his
Asian players (this Jennings overheard) and to Keller about his voy-
euristic interest in watching the first time one player, whom Dorrance
believed was a virgin with repressed sexual desire, had intercourse.
These two private incidents together with overt displays of affection
toward Keller and his graphic comments about the "nice rack[s]" or
"nice legs" of certain players, J.A. 1229, 1236, indicate that Dorrance
viewed at least some of his players as sexual objects.
Dorrance’s sex-based verbal abuse permeated team settings. It is
described by players as occurring frequently, often during team
warm-up time, on a typical Monday afternoon (the first practice date
after the weekend), or any time the team was together, whether at
home or traveling. According to Jennings, two players in particular
were targeted with humiliating comments or questions about their sex
lives almost every day or every other day.
Dorrance’s persistent talk about his players’ sex lives caused Jen-
nings to live in constant fear that he would at some point direct his
"filthy comments" at her, as he shifted his focus from player to player.
J.A. 1243. Jennings tried to stay off of Dorrance’s "radar" when he
was on the topic of sex, J.A. 1242, but she was nevertheless targeted
in the team setting. Thus, in a team warm-up session during Jen-
nings’s sophomore year, Dorrance asked whether Jennings had had
"the same good weekend" with her boyfriend as a player whose week-
end he had just described as a "shag fest." J.A. 1248. Jennings was
14 JENNINGS v. UNIVERSITY OF NORTH CAROLINA
humiliated by this question and did not respond. A jury could reason-
ably find that Dorrance’s two incidents (the hotel room encounter
being the first) of direct harassment of Jennings were more abusive
in light of the general, sexually charged environment. In other words,
the incidents were not isolated events, but were part of an abusive pat-
tern that instilled fear and dread.
The sexually charged atmosphere perpetuated by Dorrance left
other players besides Jennings with feelings of humiliation and dis-
comfort. Keller was repulsed by Dorrance’s inappropriate touching,
and she regarded it as "kind of sick" when he told her he "want[ed]
to watch [her] friend have sex." J.A. 1069. Amy Steelman "was
shocked by the pervasive and frequent [sexual] discussions" that Dor-
rance "frequently provoked" and "always encouraged;" she felt "very
uncomfortable with his sexually charged environment," and she
"would frequently [go] home crying" as a result. J.A. 1452. Both Jen-
nings and Steelman observed that Dorrance’s comments visibly upset
other players as well. One, who was constantly portrayed by Dorrance
as sexually promiscuous, was reduced to tears as a result of his accu-
sations. Still another got an upset or disgusted look on her face after
Dorrance focused on her breasts (her "rack," as he put it) and called
her top heavy. J.A. 1270-71. A lesbian player, whose sexual orienta-
tion was highlighted by Dorrance, was noticeably bothered by this
attention. Evidence that other players shared Jennings’s humiliation
and discomfort assists in showing that she was objectively reasonable
in finding the environment hostile and abusive. Cf. Hayut v. State
Univ. of N.Y., 352 F.3d 733, 747 (2d Cir. 2003) (characterizing reac-
tions of plaintiff’s peers to conduct directed at plaintiff as "significant
to the mandated objective analysis" of whether conduct was suffi-
ciently severe to be actionable under Title IX).
In sum, Jennings has proffered sufficient facts for a jury to find that
Dorrance’s degrading and humiliating conduct was sufficiently severe
or pervasive to create a sexually hostile environment. This conclusion
takes into account the informal, sometimes jocular, college sports
team atmosphere that fosters familiarity and close relationships
between coaches and players. A male coach might use sexual slang
in front of his women players, and the players might do the same in
front of the coach. Title IX is not a civility code for the male coach
who coaches women, and it is not meant to punish such a coach for
JENNINGS v. UNIVERSITY OF NORTH CAROLINA 15
off-color language that is not aimed to degrade or intimidate. What
happened in this case, if Jennings’s version of the facts is believed,
is that Dorrance took advantage of the informal team setting to cross
the line and engage in real sexual harassment that created a hostile or
abusive environment.
A Title IX plaintiff completes her hostile environment showing at
the summary judgment stage if, based on her proffered evidence, the
sexual harassment "can be said to deprive [her] of access to . . . edu-
cational opportunities or benefits." Davis, 526 U.S. at 650 (emphasis
added). Davis explains that a sexual harassment victim "can be said"
to have been deprived of access to educational opportunities or bene-
fits in several circumstances, including when the harassment (1)
results in the physical exclusion of the victim from an educational
program or activity; (2) "so undermines and detracts from the vic-
tim[’s] educational experience" as to "effectively den[y her] equal
access to an institution’s resources and opportunities"; or (3) has "a
concrete, negative effect on [the victim’s] ability" to participate in an
educational program or activity. Id. at 650-51, 654.2 These alternative
ways of showing deprivation or harm are rooted in the statute. Specif-
ically, Title IX states that a covered institution cannot, on the basis
of sex, (1) "exclude[ ] [a person] from participation in," (2) "den[y]
[a person] the benefits of," or (3) subject[ ] [a person] to discrimina-
tion under any education program or activity." 20 U.S.C. § 1681(a).
Davis hews to the statute in pointing out that sexual harassment
reaches the level of actionable discrimination when it has "a concrete,
negative effect on [the victim’s] ability" to participate in a program
or activity. See Davis, 526 U.S. at 654. Thus, in relying on Davis’s
2
Davis’s deprivation standard was formulated in the context of student-
on-student harassment. The Supreme Court thus recognized "the practi-
cal realities [faced by a school in] responding to student behavior," not-
ing that "children may regularly interact in a manner that would be
unacceptable among adults." Davis, 526 U.S. at 651, 653. The Court
expressly acknowledged that "[t]he relationship between the harasser and
the victim necessarily affects the extent to which the misconduct can be
said to breach Title IX’s guarantee . . . and to have a systemic effect on
a program or activity." Id. at 653. Student-on-student "harassment, in
particular, is less likely to satisfy these requirements than is teacher-
student harassment" or coach-student harassment. Id.
16 JENNINGS v. UNIVERSITY OF NORTH CAROLINA
"concrete, negative effect" language in the discussion that follows, we
have neither gutted that case’s deprivation standard nor contravened
the text of the statute, as the dissent suggests. See post at 45. In all
events, the burden of showing a concrete, negative effect is suffi-
ciently rigorous. It is, in simple terms, an effect that is concrete (or
real), negative, and substantial.
Jennings has met the burden here with evidence showing that Dor-
rance’s severe and pervasive sexual harassment concretely and nega-
tively affected her ability to participate in the soccer program. She
testified that the hostile atmosphere created by Dorrance made her
feel humiliated, anxious, and uncomfortable; these effects, in turn,
had a negative impact on her participation and performance in soccer
and on her academic performance. Jennings’s testimony is supported
by a psychiatrist’s opinion that Dorrance’s destructive practice of ver-
bal sexual abuse caused her to suffer severe emotional distress.
The dissent suggests that the slight improvements in Jennings’s
grades, her belief that she was improving as a player, and her surprise
and disappointment at being cut do not depict a player who has been
effectively "denied the educational opportunity of playing on the
team." Post at 52. This evidence does not prevent Jennings from
establishing that she has a triable issue on the last part of the hostile
environment element of her Title IX claim. If anything, it shows how
hard Jennings was trying, and what she believed she was achieving,
in spite of the hostile environment. When Dorrance cut Jennings from
the team in the middle of exams in May 1998, her cumulative GPA
was 1.964, below passing. When she finished exams, and the grades
were recorded, her GPA was 2.022, barely above passing. This sub-
par academic performance gives substance to Jennings’s testimony
that her GPA was so low because the hostile soccer environment
made it difficult for her to focus on her studies.
Likewise, Jennings’s acknowledgment that she was disappointed at
being cut does not, at the summary judgment stage, defeat her evi-
dence that she was harmed by the hostile environment, both emotion-
ally and in her performance as a player. Jennings was understandably
disappointed because she had lost the opportunity to play on the coun-
try’s premier women’s college soccer team. Her disappointment,
however, does not detract from the fact that she had to endure sexual
JENNINGS v. UNIVERSITY OF NORTH CAROLINA 17
harassment in order to play. A jury could reasonably find that the
harassment interfered substantially with Jennings’s ability to partici-
pate in the soccer program, notwithstanding her desire to stay on the
team. At practice, for example, Jennings was in constant fear that
Dorrance would direct his questions about sexual activities to her.
This prompted her to concentrate on "stay[ing] out of [Dorrance’s]
radar" when he was on the subject of sex. J.A. 1242. This surely had
a negative effect on her ability to concentrate on soccer. Moreover,
the general, sex-charged environment that Dorrance perpetuated
caused Jennings to feel humiliated, anxious, and uncomfortable. A
jury could reasonably agree with her that the burden of these feelings
had a "negative[ ] impact[ ]" on her "performance on the soccer field."
J.A. 1585. In sum, a jury could find that the total impact of Dor-
rance’s severe and pervasive harassment, including the severe emo-
tional distress it caused Jennings to suffer, had a concrete, negative
effect on her ability to participate in the soccer program.
C.
Finally, Jennings must provide a basis for imputing liability to
UNC for Dorrance’s conduct. An institution can be held liable for a
Title IX violation only if "an official who . . . has authority to address
the alleged discrimination and to institute corrective measures . . . has
actual knowledge of discrimination in the [institution’s] programs and
fails adequately to respond" or displays "deliberate indifference" to
discrimination. Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274,
290 (1998).
Jennings’s facts show that in the fall of 1996 Jennings met with
Susan Ehringhaus, Assistant to the Chancellor and counsel to the Uni-
versity. Ehringhaus was UNC’s highest ranking lawyer and an official
responsible for fielding sexual harassment complaints. Jennings
informed Ehringhaus that Dorrance had created an abusive environ-
ment in the women’s soccer program. Ehringhaus was given vivid
details of Dorrance’s sexual comments about his players when the
team was together. Jennings also reported that the situation was caus-
ing her intense feelings of discomfort and humiliation. Ehringhaus
dismissed this complaint by telling Jennings that Dorrance was a
"great guy" and that she should work out her problems directly with
him. J.A. 1341-42. Ehringhaus took no action on the complaint, and
18 JENNINGS v. UNIVERSITY OF NORTH CAROLINA
Dorrance’s harassment continued. These facts are sufficient to estab-
lish that Jennings gave Ehringhaus, and by extension UNC, actual
notice of the hostile environment created by Dorrance. This notice
and the University’s failure to take any action to remedy the situation
would allow a rational jury to find deliberate indifference to ongoing
discrimination.
***
For the foregoing reasons, Jennings has presented sufficient evi-
dence to raise triable questions of fact on all disputed elements of her
Title IX claim against UNC, and the district court erred in granting
the University’s motion for summary judgment.
III.
Jennings asserts § 1983 claims for sexual harassment against Dor-
rance, Ehringhaus, and several other individuals who were employed
by UNC. These defendants, according to Jennings, acted "under color
of" state law to deprive her of "rights, privileges or immunities
secured by the Constitution and laws" of the United States, 42 U.S.C.
§ 1983, specifically her Fourteenth Amendment equal protection right
to be free from sexual harassment in an educational setting, see
Hayut, 352 F.3d at 743-44. The district court granted summary judg-
ment to all of the individual defendants on these claims, but we con-
clude that Jennings has triable claims against Dorrance and
Ehringhaus.
To survive Dorrance’s motion for summary judgment on her
§ 1983 sexual harassment claim against him, Jennings must show that
he was a state actor, he harassed her because of sex, and the harass-
ment was sufficiently severe or pervasive to interfere unreasonably
with her educational activities. See id. at 744 (explaining that § 1983
sexual harassment claims based on a hostile environment theory "are
governed by traditional Title VII . . . jurisprudence"). First, "‘[s]tate
employment is generally sufficient to render the defendant a state
actor,’" and a defendant necessarily "acts under color of state law
when he abuses the position given to him by the State." West v.
Atkins, 487 U.S. 42, 49-50 (1988) (quoting Lugar v. Edmondson Oil
Co., 457 U.S. 922, 936 n.18 (1982)). As we spell out in detail in part
JENNINGS v. UNIVERSITY OF NORTH CAROLINA 19
II, supra, Jennings has proffered evidence (1) that Dorrance was a
state actor, functioning in his capacity as a coach, when he engaged
in sexual harassment and (2) that the harassment was sufficiently
severe or pervasive to interfere with her educational activities. The
district court therefore erred in granting summary judgment to Dor-
rance on the § 1983 claim for sexual harassment.
The district court correctly granted summary judgment on identical
§ 1983 claims against three of Dorrance’s subordinates, assistant
coaches William Palladino and Chris Ducar, and the athletic trainer,
Bill Prentice. Jennings has not offered evidence that the three subordi-
nates participated in sexual harassment.
Jennings’s § 1983 claim against Ehringhaus is based on the theory
of supervisory liability. See Baynard v. Malone, 268 F.3d 228, 235
(4th Cir. 2001) ("It is well settled that ‘supervisory officials may be
held liable in certain circumstances for the constitutional injuries
inflicted by their subordinates.’" (quoting Shaw v. Stroud, 13 F.3d
791, 798 (4th Cir. 1994)). Jennings proffers evidence that Ehringhaus,
as an administrative official with authority to take action against Dor-
rance, failed to act and thereby allowed Dorrance’s sexual harassment
to continue unchecked. More specifically, Jennings’s evidence would
allow a jury to find that Ehringhaus had actual knowledge of Dor-
rance’s misconduct; that her response was "so inadequate as to show
deliberate indifference to or tacit authorization of the alleged offen-
sive practices"; and that there exists "an affirmative causal link"
between Ehringhaus’s inaction and Jennings’s constitutional injury.
See Baynard, 268 F.3d at 235 (quoting Shaw, 13 F.3d at 799). Ehr-
inghaus is therefore not entitled to summary judgment on Jennings’s
§ 1983 claim against her for supervisory liability.
Summary judgment on this claim was properly awarded to the
estate of Michael Hooker (former UNC Chancellor) and to other cur-
rent or past UNC officials, Richard Baddour, Beth Miller, and John
Swofford. There is no evidence that any of these officials learned of
Dorrance’s behavior until Jennings was cut from the team. Nor does
Jennings suggest that these individuals supported any official policy
that enabled the harassment.
Dorrance and Ehringhaus have preserved the issue of qualified
immunity. In their summary judgment papers the individual defen-
20 JENNINGS v. UNIVERSITY OF NORTH CAROLINA
dants raised qualified immunity as a defense on the § 1983 claims, but
gave the issue secondary attention. The district court did not address
the question. On appeal the defendants assert qualified immunity as
an alternative argument, again giving the matter limited treatment.
These circumstances prompt us to decline to consider the question,
and thus allow the district court to address it in the first instance on
remand. See Brown v. United States, 851 F.2d 615, 620 (3d Cir. 1988)
(declining to exercise the power to consider qualified immunity in the
first instance on appeal).
IV.
The remaining issues raised by Jennings may be dealt with in short
fashion. She argues that the district court erred in awarding summary
judgment to the individual defendants on her constitutional right to
privacy claim brought under § 1983 and to Dorrance on her common
law privacy claim. Here, we affirm the district court because none of
the defendants either required Jennings to disclose personal informa-
tion or invaded her records to discover such information. Cf. Thorne
v. City of El Segundo, 726 F.2d 459, 468-69 (9th Cir. 1983) (finding
a constitutional violation where a public job applicant was required
to answer questions about her sexual activity as a condition of
employment); Toomer v. Garrett, 574 S.E.2d 76, 90 (N.C. Ct. App.
2002) (stating that the privacy invasion tort includes intrusions such
as trespassing, eavesdropping, and peeping into windows). Finally,
Jennings argues that the district court erred in denying two of her
motions: (1) the motion to strike the defendants’ answer on the
ground that their denial of one allegation in the complaint was incon-
sistent with Dorrance’s deposition testimony, and (2) the motion to
strike, as not properly authenticated, certain exhibits (team records)
accompanying Dorrance’s affidavit. After considering the arguments
and materials relating to these motions, we conclude that the district
court did not abuse its discretion in denying them.
V.
For the reasons stated above, we vacate the district court’s grant of
summary judgment on Jennings’s Title IX claim against UNC, her
§ 1983 claim against Dorrance for sexual harassment, and her § 1983
claim against Ehringhaus for sexual harassment based on supervisory
JENNINGS v. UNIVERSITY OF NORTH CAROLINA 21
liability. We affirm the grant of summary judgment on Jennings’s
remaining claims against the individual defendants, and we affirm the
procedural rulings. The case is remanded for further proceedings on
the open Title IX and § 1983 claims.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
GREGORY, Circuit Judge, concurring:
This appeal presents the difficult issue of whether an admittedly
inappropriate environment created by a women’s collegiate soccer
coach was sufficiently hostile to deprive a player of the benefits of or
participation in the team or her education. Because I believe that
Melissa Jennings has presented enough evidence, when viewed in the
light most favorable to her, to create a triable issue of fact on her Title
IX claim, I vote to reverse the district court’s grant of summary judg-
ment. I write separately from the thoughtful majority opinion to
express additional thoughts and to respond to specific arguments
raised in the well-written dissent.
I.
I agree with the majority that Anson Dorrance’s sexually explicit,
inappropriate, and harassing comments directed to other players on
the team, but overheard by Jennings, are relevant to determining
whether Jennings was subjected to a hostile environment.* See ante
*I agree with the majority that we may consider comments: (1) made
in Jennings’s presence; (2) made outside her presence, but consistent
with her account; and (3) made before her tenure on the team, but dis-
cussed in her presence. Cf. Schwapp v. Town of Avon, 118 F.3d 106, 110-
12 (2d Cir. 1997) ("[I]ncidents . . . occurring before [plaintiff’s] tenure
may be of limited probative value, but cannot be ignored on summary
judgment."); Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668,
674 (7th Cir. 1993) (stating that in reviewing hostile environment claim
courts may consider "the lexicon of obscenity that pervaded the environ-
ment of the workplace both before and after the plaintiff’s introduction
to its environs").
22 JENNINGS v. UNIVERSITY OF NORTH CAROLINA
at 11. Although the majority of hostile environment cases involve
conduct directed at the plaintiff, unlike the dissent, I do not find evi-
dence that "the Supreme Court itself has assumed throughout its Title
VII and Title IX cases that only harassment directed and targeted at
the victim was capable of creating a hostile environment." Post at 48.
Meritor Savings Bank, FSB v. Vinson held that hostile environment
claims were cognizable under Title VII because the Act "affords
employees the right to work in an environment free from discrimina-
tory intimidation, ridicule, and insult." 477 U.S. 57, 65 (1986)
(emphasis added). Meritor cited Rogers v. EEOC, 454 F.2d 234 (5th
Cir. 1971), a case recognizing a hostile environment as potentially
violative of Title VII where the employer provided discriminatory
service to its Hispanic clientele rather than any direct action against
its Hispanic employees. Further, the Circuit Court opinion in Meritor
explicitly recognized that "[e]ven a woman who was never herself the
object of harassment might have a Title VII claim if she were forced
to work in an atmosphere in which such harassment was pervasive."
Vinson v. Taylor, 753 F.2d 141, 146 (D.C. Cir. 1985), aff’d in rele-
vant part, rev’d in part, Meritor, 477 U.S. 57.
This view fully accords with this Circuit’s decision in Spriggs v.
Diamond Auto Glass, a hostile environment case where we noted that
"[w]e are, after all, concerned with the ‘environment’ of workplace
hostility, and whatever the contours of one’s environment, they surely
may exceed the individual dynamic between the complainant and his
supervisor." 242 F.3d 179, 184 (4th Cir. 2001) (citing Monteiro v.
Tempe Union High Sch. Dist., 158 F.3d 1022, 1033 (9th Cir. 1998)
("[R]acist attacks need not be directed at the complainant in order to
create a hostile educational environment."); Vinson, 753 F.2d at 146;
Walker v. Ford Motor Co., 684 F.3d 1355, 1359 n.2 (11th Cir. 1982)
("The fact that many of the epithets were not directed at [the plaintiff]
is not determinative. The offensive language often was used in [his]
presence after he had voiced objections to [his employer].")); accord
Jackson v. Quanex Corp., 191 F.3d 647, 660-61 (6th Cir. 1999) (not-
ing that the court may consider employer conduct directed towards
entire minority group, even in individual Title VII action, and that
such conduct was relevant to question of whether environment was
subjectively and objectively hostile); Schwapp, 118 F.3d at 111 ("Just
as a racial epithet need not be directed at a plaintiff in order to con-
tribute to a hostile work environment, the fact that a plaintiff learns
JENNINGS v. UNIVERSITY OF NORTH CAROLINA 23
second-hand of a racially derogatory comment or joke by a fellow
employee or supervisor also can impact the work environment." (cita-
tion omitted)); Edwards v. Wallace Community College, 49 F.3d
1517, 1522 (11th Cir. 1995) ("A plaintiff may have a viable hostile
environment claim even if the racial remarks were not directed at
her.").
As the majority explains, Dorrance’s comments may have singled
out individual players at any given practice, but his actions created a
"general environment of sexual harassment," ante at 12, where young
women under his control were the subject of humiliating and degrad-
ing comments, frequently on the basis of their alleged promiscuity,
see ante at 10. I believe that a rational jury could find that this envi-
ronment, which included the two specific incidents directed toward
Jennings, constituted a pervasive hostile environment. Drawing infer-
ences in Jennings’s favor, a rational jury could find that Jennings
"live[d] in constant fear" that Dorrance would turn his attention to
her. Ante at 13. Indeed, this fear became a reality during the encounter
between Jennings and Dorrance in a hotel room at the end of her
freshman year.
II.
I agree with the dissent that Dorrance’s hotel-room inquiry to Jen-
nings was plainly vulgar. The dissent concludes, however, that the
question was "obviously an inquiry about what was occupying Jen-
nings’ time." Post at 50. While I agree that a coach would inquire as
to whether a player was having personal problems, on this record, tak-
ing inferences in Jennings’s favor, I do not think we can conclude as
a matter of law that the question was "not made in an attempt to
humiliate, degrade, and demean." Post at 50.
First, as the majority notes, Dorrance’s remarks to his players "fre-
quently carried the strong suggestion of promiscuity," ante at 10,
often employing the same vulgar construction he used with Jennings.
He asked players who their "fuck of the week" was, J.A. 1237, if a
certain player was "going to fuck [her boyfriend] and leave him," J.A.
1248, and another player, "[h]ow many guys in the [lacrosse] team
did [she] fuck," J.A. 1238. Because Jennings had heard those remarks
and practiced her sport in the abusive environment engendered by
24 JENNINGS v. UNIVERSITY OF NORTH CAROLINA
them, a rational jury could conclude that Dorrance’s hotel-room
inquiry was an attempt to humiliate, degrade, and demean her on the
basis of sex. Furthermore, Dorrance’s question assumed that Jennings
was engaged in a sexual relationship, unlike a question that would
have simply asked whether she was having "boy" or "relationship"
problems. To Jennings, the assumption that she was engaged in sexual
relations at all offended. See J.A. 1332 ("[Dorrance] asking me if I’m
fucking anybody would be the assumption of . . . . I don’t think any-
body would ask that question, unless you are assuming they already
had sexual relationships."). In all candor, it is a close issue whether
Jennings’s subjective view meets the objective standard. In this case,
however, I believe that a rational jury could find the remark objec-
tively offensive because of the age difference between Dorrance and
Jennings, Dorrance’s position of power and trust, and, most impor-
tantly, the link between Dorrance’s knowledge of whether a player
engaged in sexual activity and his harassment implying that player’s
promiscuity.
Finally, omitted from both the majority and dissent’s version of the
hotel-room conversation, is the fact that Dorrance, directly after ask-
ing Jennings with whom she was having sex, commented that Jen-
nings should feel comfortable sharing things with him—even things
she could not share with her father—because he was like a father fig-
ure. J.A. 1325. Given this comment and Jennings’s knowledge that
Dorrance showed open affection for a fellow team member (Debbie
Keller), I do not believe that as a matter of law Dorrance’s question
was not "focus[ed] on sex" and not posed because of Jennings’s gen-
der. Post at 50; see Wills v. Brown Univ., 184 F.3d 20, 39 (1st Cir.
1999) (Lipez, J., dissenting) (recounting facts of case involving col-
lege professor telling student "I want to be close to you like father-
daughter," during study sessions that included professor fondling stu-
dent).
In sum, while the hotel-room remark can be viewed as a mere
poorly phrased inquiry from a coach to a player about whether rela-
tionship problems were interfering with her athletic performance,
such a conclusion would require us to draw inferences in favor of
Dorrance, contrary to our standard of review. Taking into account the
factors discussed above, a rational jury could conclude that Dor-
JENNINGS v. UNIVERSITY OF NORTH CAROLINA 25
rance’s vulgar inquiry was sexual harassment and "part of an abusive
pattern that instilled fear and dread." Ante at 14.
III.
As noted by the majority, a Title IX plaintiff must proffer evidence
that the hostile or abusive nature of the environment "ha[d] ‘a con-
crete, negative effect on [the victim’s] ability’ to participate in an edu-
cational program or activity." Ante at 15-16 (quoting Davis v. Monroe
County Bd. of Educ., 526 U.S. 629, 650-51, 654 (1999)). In this case,
the proper inquiry is whether the record contains enough evidence to
allow a rational jury to conclude that the hostile environment created
by Dorrance effectively denied Jennings the benefits of membership
on the women’s soccer team and enrollment at the University of
North Carolina at Chapel Hill ("UNC") by making it much more diffi-
cult for her to develop and achieve as a student-athlete. See Gabrielle
M. v. Park Forest-Chicago Heights, Il. Sch. Dist. 163, 315 F.3d 817,
828 (7th Cir. 2003) (Rovner, J., concurring in part and concurring in
the judgment); cf. Harris v. Forklift Sys., Inc., 510 U.S. 17, 25 (1993)
(Ginsburg, J., concurring) ("‘[T]he plaintiff need not prove that his or
her tangible productivity has declined as a result of the harassment.’
It suffices to prove that a reasonable person subjected to the discrimi-
natory conduct would find, as the plaintiff did, that the harassment so
altered working conditions as to ‘ma[k]e it more difficult to do the
job.’" (alteration in original) (citation omitted) (quoting Davis v. Mon-
santo Chem. Co., 858 F.2d 345, 349 (6th Cir. 1988))).
A.
While I believe that a plaintiff’s grades are relevant to the question
of the concrete and negative effect of harassment, an increase or
decrease in grades is not dispositive. See, e.g., Gabrielle M., 315 F.3d
at 828 (Rovner, J., concurring in part and concurring in the judgment)
(noting, in case concerning elementary school student, the fact "that
[the plaintiff’s] grades did not suffer is by no means dispositive");
Montgomery v. Ind. Sch. Dist. No. 709, 109 F. Supp. 2d 1081, 1094
(D. Minn. 2000) ("[G]rades are not the sole benefit to be derived by
a student from an educational experience."). In this case, Jennings’s
grade point average increased from 1.538 at the end of her first
semester in the Fall of 1996 to a cumulative average of 2.022 at the
26 JENNINGS v. UNIVERSITY OF NORTH CAROLINA
end of her sophomore year, when she was dismissed from the soccer
team. J.A. 1449. I disagree with the dissent’s conclusion that an
improvement in grades is evidence of the lack of discriminatory
impact. See post at 52. Discriminatory impact would be shown if Jen-
nings’s grades, though improved, had risen less than they would have
had she not been subjected to a hostile environment. In this case, I
believe that Jennings has proffered sufficient evidence to allow a jury
to conclude that the hostile environment created by Dorrance affected
her academic performance to such an extent that she was deprived of
equal access to the benefits of an education at UNC.
During her deposition, Jennings testified that her grade point aver-
age was low during her time on the team because she was unhappy
and uncomfortable due to the hostile environment created by Dor-
rance. J.A. 1320. Jennings specifically stated that she "found it hard
to focus by just the constant—by the environment that was created—
it was very hard to focus." J.A. 1321. When pressed, Jennings stated
that it was the hostile environment created by Dorrance that affected
her academic performance, rather than her teammates, her shortcom-
ings as a soccer player, or her coaches’ criticism of her soccer ability.
See J.A. 1322-23 ("Q. Was the fact that other girls on the team were
critical of your performance as a soccer player part of what was
affecting your performance at school? A. No. Like I said before, it
was the drinking comments, the comments made about all the girls,
and their sexual stuff that just made me uncomfortable."). As noted
by the majority, this testimony is supported by a psychiatrist’s opin-
ion that stress caused by the hostile environment contributed to Jen-
nings’s poor academic performance. J.A. 1583. Despite the
subsequent increase in Jennings’s grade point average, a rational jury
could find, on the basis of her testimony and her expert witness, that
her poor academic performance was a result of her lack of focus due
to the hostile environment created by Dorrance or that her grades
would have increased even more but for the hostile environment. See
Hayut v. State Univ. of N.Y., 352 F.3d 733, 748 (2d Cir. 2003) (noting
that despite student’s steady academic performance during the period
of harassment, her testimony that she was unable to sleep and did not
want to attend classes and thus could not concentrate on her studies
due to harassment was enough evidence to render the issue one for
the jury); Riccio v. New Haven Bd. of Educ., 467 F. Supp. 2d 219,
227-28 (D. Conn. 2006)(finding daily verbal and some physical
JENNINGS v. UNIVERSITY OF NORTH CAROLINA 27
harassment undermined educational experience despite plaintiff’s
ability to maintain her good grades).
B.
The dissent implies that Dorrance’s harassment could not have
interfered with or denied Jennings the full educational opportunity of
playing on the UNC women’s soccer team because she attempted to
improve her play and was dismayed at being cut from the team. See
post at 52. In essence, the dissent concludes that because Jennings did
her best to avoid Dorrance and his abuse, but still made the most of
her time on the team and as a student at UNC, she has forfeited her
cause of action. This implication turns Title IX on its head. Cf. Gabr-
ielle M., 315 F.3d at 829 (Rovner, J., concurring in part and concur-
ring in the judgment) ("Neither [the plaintiff] nor future victims of
schoolplace harassment should be penalized simply because they
seem resilient."); Hayut, 352 F.3d at 749 ("[W]hat students put up
with, without objection or protest, does not mark the bounds of per-
missible classroom conduct."); Henson v. Dundee, 682 F.2d 897, 902
(11th Cir. 1982) ("[A] requirement that a man or woman run a gaunt-
let of sexual abuse in return for the privilege of being allowed to work
and make a living can be as demeaning and disconcerting as the har-
shest of racial epithets.").
The evidence reflects that Jennings’s attempts to make the most of
her team experience did not involve increasing her interaction with
Dorrance, but rather with her teammates. For example, in the Spring
of 1998, prior to being cut from the team, Jennings hosted a team
party at her home and participated in hazing events. J.A. 1365-66.
Jennings described her relationship with Dorrance during that time
period as not "friendly" or "cozy": "It was just he was a coach and I
was a player, and I did my thing. It wasn’t that ‘Hey, how are you
doing,’ . . . . I would get a nod; that is about it." J.A. 1374. Indeed,
Jennings characterized herself as "continuing to pull away from" Dor-
rance during that time period. J.A. 1374. Thus, while Jennings was
attempting to improve her play, her interactions with Dorrance grew
more limited and her increased participation in the team took the form
of increased socializing with her teammates.
A rational jury could view Jennings as having been denied the full
opportunity to achieve her potential as a member of the UNC
28 JENNINGS v. UNIVERSITY OF NORTH CAROLINA
women’s soccer team, despite her "growing desire to remain with the
team." Post at 52. For example, a jury could view Dorrance to have,
in effect, conditioned the receipt of his coaching and advice on accep-
tance of his sexual banter, a practice which denied Jennings equal
access to the benefits of team membership. Cf. Wills 184 F.3d at 30
(noting that it is an open question whether the denial of informal
tutoring from a professor is an educational benefit that could form the
basis of a Title IX suit).
The dissent ignores the special context of Title IX. Unlike an
employee-plaintiff in a Title VII action, if Jennings wished to remain
a student at UNC and a member of a varsity soccer team, she had to
remain a member of Dorrance’s soccer team. Jennings was, of course,
free to transfer, and had she done so as a result of Dorrance’s harass-
ment, she would have been even further deprived of the educational
opportunities of UNC. See, e.g., Hayut, 352 F.3d at 750 (viewing stu-
dent’s withdrawal from a university because of sexual harassment as
depriving the student of educational opportunities of university). In
sum, a rational jury could find that Jennings, who had played compet-
itive soccer since the age of six, including stints on boys teams, was
deprived of the educational advantage of UNC’s soccer program,
despite her attempts to improve and her disappointment when she was
cut from the team, because of Dorrance’s harassment.
IV.
This is a difficult case, but I ultimately believe that Jennings has
presented enough evidence for her Title IX claims to move forward.
Drawing inferences in Jennings’s favor, a jury could conclude that the
pervasive, hostile environment, resulting from Dorrance’s conduct,
amounted to sexual harassment and effectively deprived her of the
educational benefits of being a student-athlete at the University. For
the reasons stated above, the district court’s grant of summary judg-
ment should be reversed. Accordingly, I concur in the majority’s
opinion.
Judge Motz has requested that she is shown as joining this opinion.
NIEMEYER, Circuit Judge, dissenting:
This case raises the question of whether Melissa Jennings, a mem-
ber of the University of North Carolina ("UNC") women’s soccer
JENNINGS v. UNIVERSITY OF NORTH CAROLINA 29
team for the 1996 and 1997 seasons was, by reason of sexual discrim-
ination, "deprive[d] . . . of access to the educational opportunities or
benefits provided by the school," in violation of Title IX, 20 U.S.C.
§ 1681(a). Davis v. Monroe Co. Bd. of Educ., 526 U.S. 629, 650
(1999).
After being warned repeatedly about both her academic and ath-
letic performance, Jennings was cut from the soccer team in May
1998, before the beginning of the 1998 season. By her own account,
Jennings did not want to leave the team, and she was not expecting
to get cut but rather expected to hear that she had improved. At the
time, Jennings’ cumulative grade point average was 1.964 on a 4.0
scale, up from the previous year’s 1.538. But she was still at or near
the bottom of the team’s training performance levels and was a third-
or fourth-string goalkeeper. She had played in only one regular season
game during her first year and in one or two during her second year.
Only after Jennings was cut did her father write a letter to the gen-
eral counsel of UNC, complaining about sexual harassment of his
daughter during the previous two years. A few months later, Jennings
commenced this action. The district court granted UNC’s motion for
summary judgment, and I would affirm.
During the two-year period of which Jennings complains, she
alleged no deprivation of an educational opportunity by reason of sex-
ual discrimination. She does allege (1) much sexual talk during prac-
tices by teammates and her coach, Anson Dorrance; (2) two
innocuous comments directed at her by teammates and Coach Dor-
rance; and (3) a conversation during her annual evaluation meeting
during which Coach Dorrance was trying to understand the reasons
for Jennings’ poor academic performance. He asked, "What is going
on in [your] social life? Is that affecting [your] grades? Is that affect-
ing [you] as a player? Who are you f**king? Is that affecting your
grades?"
Jennings does not allege that she was cut from the soccer team
because of sexual discrimination or that she played any less because
of sexual discrimination. She also does not allege any touching,
advances, or offers of sex. Her claim amounts to a complaint about
the vulgarity of the pervasive locker room-style talk by teammates
30 JENNINGS v. UNIVERSITY OF NORTH CAROLINA
and her coach that attended team practices. In these circumstances,
the district court was correct in concluding that the facts do not create
a triable issue as to a violation of Title IX, and therefore, I respect-
fully dissent.
I
To give Jennings the full benefit of the facts in the summary judg-
ment record, it is necessary to set them forth carefully and in some
detail. This is especially important because Jennings (as well as the
majority) has tended to rely on completely irrelevant incidents that
occurred even before she entered UNC as a freshman; that she never
knew about; and that she learned only from the testimony given in
this case.1
A
Melissa Jennings began playing goalkeeper on soccer teams when
she was 12 years old. She performed so well that within a few years
1
For instance, the majority repeatedly relies on Dorrance’s "fly on the
wall" comment without mentioning that Dorrance allegedly made this
comment to Debbie Keller, the team captain, in the spring of 1994 —
more than two years before Jennings enrolled at UNC. (J.A. 1068.) The
majority also relies on numerous instances about which Jennings never
had any knowledge — nothing in the record imputes them to Jennings’
knowledge, and Jennings herself never referred to them, even though she
testified to every incident of which she had any awareness. (J.A. 1430-
31.) Thus, the majority relies on the fact that Dorrance told a player "to
keep your knees together . . . you can’t make it so easy for them" or
asked another whether she was "going to have sex with the entire
lacrosse team." (J.A. 1127.) But Jennings never heard those comments.
Jennings also never testified knowing that Dorrance asked a player about
the size of her boyfriend’s genitalia. (J.A. 1452.) Similarly, the majority
relies on the fact that Dorrance showed overt affection for Keller. But
Jennings’ only testimony in this regard is in relation to the weight room
incident, which she described as follows: "[W]e are in the weight room,
[Debbie Keller] goes off and talks with [Dorrance] in the bleachers."
(J.A. 1290.) Finally, neither Jennings nor Keller ever testified that Dor-
rance "dangl[ed] his hand in front of [Keller’s] chest," (J.A. 1452-53), as
relied on by the majority.
JENNINGS v. UNIVERSITY OF NORTH CAROLINA 31
she was the first-string goalie on an elite youth soccer club. (J.A.
1199, 1200.) After graduating from high school, Jennings went on a
recruiting trip to the University of Kansas and verbally committed to
play for its women’s soccer team. (J.A. 1217.) Despite her verbal
commitment to Kansas, Jennings wished to play soccer at UNC at
Chapel Hill because she "knew it was the number one school. It ha[d]
all the national titles." (J.A. 1216.)
The UNC women’s soccer team, which Anson Dorrance has
coached since its inception in 1979, has long been the dominant pro-
gram in the sport, winning 19 of 26 national titles, including the
national title in 2006. Because of the program’s dominance, Jennings
called Dorrance and expressed her interest. (J.A. 1216.)
Dorrance was familiar with Jennings because of a UNC soccer
camp that she had attended, and he asked her if she had already com-
mitted elsewhere. After finding out about her Kansas commitment, he
told her to speak with Kansas’ head coach to see if Jennings could
visit Chapel Hill. (J.A. 1217-18, 1221.) Jennings did visit UNC and
ultimately joined its soccer team as a walk-on recruit. Dorrance did
not recommend her for a scholarship. (J.A. 181.)
During Jennings’ freshman season, in the fall of 1996, she was the
third- or fourth-string goalkeeper and played in one preseason game
and one regular season game. (J.A. 1334.) The team held practice
every weekday afternoon during the fall and on Saturday mornings,
except on game days. (J.A. 1042-43.) During the first 10-15 minutes
of practice, before the formal drills began, the players had what they
called "team time," during which they would warm up, run a lap, and
stretch as a group. (J.A. 1046-47.) Debbie Keller, the team captain in
1996, described these warm-ups as a time "at the beginning of prac-
tice to talk about our day and then get serious for practice," to "talk
about . . . anything that would interfere with your concentrating on
practice." (J.A. 1044-45.)
The environment during team time was casual and informal, and
the women joked and conversed about a range of topics, invariably
talking about their social activities and their personal lives, including
their sex lives. They talked about the "parties they had been to,"
whom they were dating, and "who they hooked up with." (J.A. 1047-
32 JENNINGS v. UNIVERSITY OF NORTH CAROLINA
51.) Some girls discussed "intimate sexual details," (J.A. 1052), giv-
ing "in full detail, start to finish," an account of "the night they spent
with some guy," including the "different sexual acts they performed."
(J.A. 1054.) According to Keller, these players openly shared "too
much info." (J.A. 1055.) Others discussed the numerous sexual
exploits they had undertaken within a short period of time. (J.A. 1055,
1058.) While most of the sex talk among the women during team time
was more general than descriptive, like whether they "had sex" or
whom they had "hooked up with," (J.A. 1041, 1056), Keller testified
that "anywhere between five to ten times" per season, the women
gave "graphic," "full detail," "start to finish" descriptions of their sex-
ual experiences. (J.A. 1054-55.)
Not all of the women discussed their sex lives so openly and in
such detail during team time. Keller described degrees of openness
among the players, with some women being "very wide open about"
their personal and sex lives, others being intermediately so, and still
others keeping their personal lives completely private. (J.A. 1053-56.)
Jennings fell into the last group, testifying in deposition that she did
not participate in her teammates’ sex-themed conversations. (J.A.
1242, 1244.)
Once or twice a week, Coach Dorrance mingled with his players
during team time, walking among them as they stretched and warmed
up. (J.A. 1061.) The players’ team-time conversations were free-
flowing, and Dorrance did not regulate their content. To the contrary,
Dorrance regularly stopped and participated in these informal conver-
sations, "joking around with different girls about their evenings
before or just who they’re dating." (J.A. 1057.) At times, Dorrance
asked whether the players had been out drinking, and if so, how
much. (J.A. 1067.) He also asked about team members’ families. (J.A.
1067.)
Because some of the women openly discussed their sex lives, Dor-
rance overheard some of their more frank discussions as he walked
among them. According to Keller, "occasionally" and certainly not
"every time that he walked through," Dorrance would pause and
engage in these discussions, commenting on his players’ "personal
dating [and] sex lives." (J.A. 1066.) Keller testified that Dorrance did
not confine his comments and inquiries to team time, but talked to his
JENNINGS v. UNIVERSITY OF NORTH CAROLINA 33
players at other times when "the team was together," whether "after
a game" or when waiting "for rides." (J.A. 1128.) Amy Steelman, who
played with Jennings during the 1996 season, remembers the fre-
quency of Dorrance’s interventions differently, averring that "[w]hen
Anson Dorrance was around, he would encourage and participate in
sexual discussions, sexual jokes, sexual talk, sexual banter, and sexual
innuendos. A typical Monday afternoon included queries and discus-
sions with Dorrance into the team members’ sexual and social
exploits, particularly prying into our sex lives." (J.A. 1452.) Jennings
commented that "Dorrance’s sexual comments and inquiries took
place on a regular basis."2 (J.A. 1585.)
Jennings testified that she never participated in any of the sexual
banter engaged in mutually by her teammates and Dorrance. (J.A.
1242-43.) Jennings also testified that Dorrance never directed any of
his "team-time" comments at her. (J.A. 1242-43.) Although she did
not participate and although she was not targeted, Jennings paid atten-
tion to the banter, and she labeled much of what she overheard as
inappropriate and humiliating. She testified to only two specific inci-
dents about which she heard, however, to provide content to her gen-
eral descriptions. First, one player informed the team, in Dorrance’s
presence, that over the course of an evening, she had sex with a man,
crawled out of his window, crawled into another man’s window, and
had sex with him too. (J.A. 1055, 1058.) Dorrance asked the player
whether she knew the names of these men, and whether "she took
tickets." (J.A. 1236.) Dorrance also asked this player, who was very
open about her promiscuity, who her "f**k of the minute," "f**k of
the hour," and "f**k of the week" was, and how "many guys on the
[lacrosse] team did she f**k?"3 (J.A. 1237-38.) Second, another
2
Dorrance has a much different recollection of the facts. In his affida-
vit, he stated: "I never initiated comments on those topics, only infre-
quently heard players’ comments on those subjects and even less
frequently said anything to any player at those times about those sub-
jects." (J.A. 186.) Several former soccer players who were Jennings’
teammates at UNC submitted affidavits consistent with Dorrance’s ver-
sion of the facts. (J.A. 320, 324, 330, 332). At this summary judgment
stage, of course, these allegations must be ignored, and the truth of the
testimony of Jennings, Keller, and Steelman must be accepted.
3
Keller testified that Dorrance "would use words more like ‘promiscu-
ous,’" asking "how many people are you going to sleep with." (J.A.
1127.)
34 JENNINGS v. UNIVERSITY OF NORTH CAROLINA
player spoke of a previous weekend with her boyfriend, and Dorrance
asked her if she was "going to have a shag fest . . . when he comes
to town," and whether she was "going to f**k him and leave him?"
(J.A. 1284.)
Beyond these two incidents, Jennings testified about one other par-
ticular comment that Dorrance made at practice, although it was nei-
ther directed at her nor made in the presence of any player. During
a water break, Dorrance was talking to a male athletic trainer, and
Jennings overheard them both use the phrase, "Asian threesome."
(J.A. 1285.) Jennings heard Dorrance "kind of chuckle" and say, "Oh,
yeah," after hearing the phrase. (J.A. 1285.) Jennings interpreted the
phrase to be a description of a fantasy involving two of her Asian
teammates and one of the men. (J.A. 1284-86.) Jennings also com-
plained of Dorrance’s use of profanity, including the words and
phrases "f**k," "unf**kingbelievable," "what the f**k," "f**king
brilliant," and "f**king stupid." (J.A. 1231-33, 1264-65.) Jennings
testified that Dorrance would use such phrases when his players made
mistakes, such as when he believed a player made a poor pass. (J.A.
1231.)
Jennings testified that Dorrance would occasionally comment on
players’ physical attributes, complimenting one player for having
"nice legs," (J.A. 1233), and another for having "cute dimples," (J.A.
1229), commenting on "asses in spandex," (J.A. 1229), scorning one
as a "fat ass," (J.A. 1228), and referring to one woman’s chest as her
"rack." (J.A. 1236.) Jennings testified, however, that Dorrance never
commented on any of her physical attributes, respectfully or disre-
spectfully. (J.A. 1243.) Jennings also admitted that Dorrance never
threatened her, never touched her, never ogled her, never proposi-
tioned her, and never made any form of sexual advance.
In fact, from her two years on the team, Jennings could testify of
only two instances when her personal life was mentioned at all during
soccer practice while Dorrance was present. The first occurred before
practice when Jennings and some teammates were sitting on bleachers
lining the soccer practice field with Dorrance nearby. (J.A. 1252-54.)
One of the players spoke about her weekend with her boyfriend, and
Dorrance asked if it had been a "shag fest." (J.A. 1249.) The team-
mate, seeking to involve Jennings in the conversation and knowing
JENNINGS v. UNIVERSITY OF NORTH CAROLINA 35
that Jennings, whose nickname was "Trim’n" (which, Jennings stated,
had no sexual connotation), had visited her boyfriend at a different
school the previous weekend, asked, "What about Trim’n?" (J.A.
1246-48, 1252.) Dorrance "chimed in," saying, "yes, what about
Trim’n?" (J.A. 1246, 1252.) Jennings ignored the questions asked by
her teammate and Dorrance, and left for the practice field to do "goal-
keeper stuff." (J.A. 1255.) The second instance occurred during team
time when a teammate asked Jennings whether a boy she had seen
Jennings hug after the previous day’s game was a boyfriend or just
a friend. (J.A. 1257-59.) Jennings responded that the boy was just a
friend. (J.A. 1258.) As for Dorrance’s involvement in the exchange,
he was present, but Jennings could not remember whether he said
anything. (J.A. 1258.)
As the season progressed, Jennings became concerned about the
sexual banter and other issues, and she approached Susan Ehringhaus,
then Assistant to the Chancellor and Senior University Counsel,
sometime between September and November 1996 to express her
concerns. (J.A. 1337-39, 1341.) Jennings trusted Ehringhaus because
she was a woman; she was UNC’s top legal officer; and Jennings gen-
erally felt comfortable with her. (J.A. 1338.) Jennings told Ehringhaus
(1) that Dorrance contributed to a "humiliating" and "uncomfortable"
environment, giving Ehringhaus "a run-down of what I thought would
encompass everything" regarding Dorrance’s inappropriate com-
ments, including the specifics of Dorrance asking a team member
"who the f**k of the week is." (J.A. 1342-43); (2) that Dorrance
failed to visit her in the hospital when she had become sick earlier
that semester (J.A. 1335) and failed to mention to the team that her
hospital stay was the reason she had missed a game (J.A. 1340); (3)
that Dorrance requested that Jennings buy $400 worth of Gatorade for
the team and the team’s opponent during the water supply disruptions
caused by Hurricane Fran and subsequently failed to reimburse her
(J.A. 197, 1344-45); and (4) that Dorrance encouraged Jennings to
attend parties with her teammates, even though Jennings had told
Dorrance that she was underage and alcohol was present at the parties
(J.A. 198, 1338-40, 1347-48). Jennings did not relate that any of Dor-
rance’s sexual comments had been directed at her. (J.A. 1346-47.)
Ehringhaus stated that Jennings made no complaints about the sexual
banter at this meeting or any other meeting until after Jennings had
been cut from the team. (J.A. 198.) But according to Jennings, Ehr-
36 JENNINGS v. UNIVERSITY OF NORTH CAROLINA
inghaus responded to Jennings’ complaints by encouraging her to
"work it out with" Dorrance and asking whether she was "taking those
comments into context." (J.A. 1342.) Ehringhaus characterized Dor-
rance as "a great guy" and related that she had "known him for a long
time." (J.A. 1342.) To Jennings, Ehringhaus "didn’t seem that con-
cerned." (J.A. 1342.)
A short time later, again during the fall of 1996, Jennings
approached Ehringhaus for a second time. At this meeting, Jennings
focused solely on Dorrance’s failure to reimburse her $400 for buying
the Gatorade. (J.A. 1346.) Jennings did not mention anything about
the sexual banter at practice. (J.A. 1345-46.) Following this meeting,
Jennings’ father, Craig Jennings, also wrote a letter to the University,
complaining of Dorrance’s failure to reimburse his daughter the $400.
(J.A. 1352-53, 1411, 1543.) His letter did not mention any sexual
comments at practice. (J.A. 1543, 1551.) The reimbursement issue
was thereafter resolved, and Jennings had no further meetings with
Ehringhaus until after she had been cut from the team. (J.A. 1350-51.)
Dorrance had a custom of meeting with each of his players individ-
ually at the end of the soccer season for a personal assessment of their
performance during the season in the areas of conditioning, skills, and
on-field performance; contributions to team chemistry; and academic
status. (J.A. 182-83.) For the 1996 season, Dorrance held these end-
of-year meetings in his hotel room while the team was in California
during December to play in the national championship tournament.
(J.A. 1305.) After the player before Jennings had finished her per-
sonal progress meeting with Dorrance, Jennings went in, and both she
and Dorrance sat down at a table located by the window in his hotel
room. (J.A. 1308.)
Dorrance began the conversation with "small talk," asking Jennings
such questions as "[H]ow are you doing?" and "[W]hat is going on?"
(J.A. 1309.) Dorrance began the substantive portion of the meeting by
addressing Jennings’ grade point average, which was a 1.538 on a 4.0
scale. (J.A. 1449.) Jennings knew that she was in danger of losing her
athletic eligibility due to her poor grades. Dorrance told her that her
grades "needed to improve" and that they were "not acceptable." (J.A.
1315, 1316.) He explained how important her grades were, telling her
she "ha[d] to study" and "do better in school." (J.A. 1316.)
JENNINGS v. UNIVERSITY OF NORTH CAROLINA 37
Seeking to find the reasons for Jennings’ poor academic perfor-
mance, Dorrance asked Jennings if she needed help, inquiring
whether she had been visiting the team’s academic tutor (which she
had been). (J.A. 1318.) According to Jennings, Dorrance then
inquired whether Jennings’ social life was affecting her grades, ask-
ing, "What is going on in [your] social life? Is that affecting [your]
grades, is that affecting [you] as a player?" (J.A. 1329-30.) "Who are
you f**king?" "Is that affecting your grades?" "[Is that] causing a
problem with your grades, with your performance?" (J.A. 1326,
1330.) Jennings was taken aback by the question, and immediately
replied that her personal social life was "[n]one of his god damn busi-
ness." (J.A. 1325, 1331.) Dorrance ceased his inquiry into the possible
causes of Jennings’ poor academic performance and "started talking
about [Jennings’] performance as a player." (J.A. 1327.)
Because Jennings had played in only one game during the year, as
well as one preseason game, (J.A. 1334), Dorrance focused his com-
ments on Jennings’ conditioning, telling her that her statistics for
weightlifting, sprinting, and the like were below team standards and
therefore needed to improve. (J.A. 1327.) Dorrance ended the meeting
by telling Jennings to "[i]mprove [her] grades, first and foremost, and
then . . . improve [her] performance, . . . [and to] fight for that first
string, second string position." (J.A. 1333.)
Jennings returned to the soccer team as a sophomore for the fall
1997 season, during which she again had minimal playing time,
appearing in one or two games. (J.A. 1356.) Again at the end of the
1997 season in December, Dorrance met individually with each
player for a personal progress assessment. At Jennings’ meeting, Dor-
rance discussed her academics, fitness, and contributions to team
chemistry. (J.A. 1361.) He commented that Jennings’ cumulative
GPA had improved to a 1.964 from the previous year’s 1.538. (J.A.
1449.) In Jennings’ words, Dorrance tried "to push me to continue in
a positive manner with my grades. He was acknowledging the fact
that I had made the effort." (J.A. 1362.) But he told Jennings that she
was still falling short of the team’s academic standards. (J.A. 1361.)
He also told Jennings that she needed to focus on her fitness and
training, commenting that she was not meeting the team’s standards
in those areas either. (J.A. 1362.) Finally, he encouraged Jennings "to
be a positive life source" for the team by cheering for the players from
38 JENNINGS v. UNIVERSITY OF NORTH CAROLINA
the sidelines, being "a comforting figure, and [a] positive person,
being supportive of teammates, and everything else." (J.A. 1362,
1363.) Dorrance told Jennings that he would have to remove her from
the team if she did not improve in each area. (J.A. 1363.) Nothing else
was discussed. (J.A. 1365.)
During spring 1998 (the off-season), Jennings made efforts to be
more involved in the team’s social activities, including hosting
recruits, working at the team’s concession stand, and even hazing the
team’s new members. (J.A. 1365-1372.)
On May 5, 1998, after Dorrance had asked each player to complete
a self-evaluation and an evaluation of her teammates (J.A. 1391),
Dorrance again conducted one-on-one meetings with his players. At
Jennings’ meeting, Dorrance told her that her training and fitness
levels were still below the team’s minimum standards (J.A. 1387),
that her performance was sub-par (J.A. 1395), and that she therefore
"was no longer to be a part of the team." (J.A. 1387.) Jennings was
shocked and became "hysterically upset." (J.A. 1392.) Jennings "was
not expecting to get cut. I was expecting him to say, ‘You know,
you’ve improved.’ . . . I thought I had done well. I even did my
[skills] testing injured. [I] was, you know, making every possible
attempt to do what he had asked." (J.A. 1388.) Dorrance described
Jennings’ efforts differently, observing that she "has no discipline to
improve herself as a player, is a poor student and is bad for chemis-
try." (J.A. 279.) "Jennings was clearly the worst goalkeeper on the
team during the years she played." (J.A. 182.)
A week after Jennings had been cut from the team, her father,
Craig Jennings, wrote a letter to Ehringhaus, dated May 12, 1998.
(J.A. 1551.) Although Craig Jennings had once before — in the fall
of 1996 — written to Ehringhaus to complain about the delayed reim-
bursement for Jennings’ purchase of Gatorade and the presence of
alcohol at parties attended by team players, he now complained for
the first time about the personal and sexual nature of Dorrance’s com-
ments and questions during practice and during the player interviews.
Craig Jennings specifically complained:
Coach Dorrance has in every player/coach review (except
the one last week) and at the practice field asked the follow-
ing questions:
JENNINGS v. UNIVERSITY OF NORTH CAROLINA 39
1. Who is your boy friend? Are you seeing anyone? What
does he do? Are you enjoying the UNC campus? We per-
sonally do not find these questions totally offensive, but the
answers are Melissa’s to give, if she chooses without retri-
bution.
2. When answering yes to a boy friend or after bringing
friends to team activities he then has asked the following:
Are you sleeping with him? Are you shacking up with him?
We find both of these questions totally inappropriate and
harassing!
3. The Monday practice session team question has been on
numerous occasions: Who is shacking up with whom? He
will even question roommates on the field about the exploits
of their teammates?
4. To one team member (not Melissa), he asks the team
who her S___ for the week is/was? Like most of the team
members she can not respond because he totally owns her
way through your fine institution and controls her ability to
go to your school. This is the sickest form of harassment.
(J.A. 1551.)
Ehringhaus forwarded Craig Jennings’ May 12 letter to UNC Ath-
letic Director Richard Baddour, who then ordered Beth Miller, the
Senior Associate Athletic Director, to begin an investigation pursuant
to UNC’s sexual harassment policy. (J.A. 200, 264.) Miller arranged
a meeting on May 26, 1998, at which Jennings, Craig Jennings, Ehr-
inghaus, Baddour, Dorrance, and Miller herself attended. (J.A. 1529.)
At the meeting, Jennings discussed the manner in which Dorrance had
dismissed her from the team (J.A. 1401), recounted when Dorrance
asked her about her sex life in their one-on-one evaluation meeting in
December 1996 (J.A. 1404), and described the content of the sexual
banter between Dorrance and his players. (J.A. 1406.) Dorrance
responded with a firm denial of ever discussing sexual activity in a
one-on-one meeting with any player, but he acknowledged that he
participated in group discussions during practice that touched on his
40 JENNINGS v. UNIVERSITY OF NORTH CAROLINA
players’ sex lives. He maintained that his comments were only "of a
jesting or teasing nature." (J.A. 1531.)
Following the meeting, Athletic Director Baddour wrote Craig Jen-
nings a letter dated June 9, 1998, in which he stated:
Any unwelcome discussions, including jesting, regarding
sexual activity and team members’ relationships with men
are inappropriate in the context you described. While Coach
Dorrance strongly denies that he has ever discussed an indi-
vidual team member’s sexual activity in a one-on-one dis-
cussion, Coach Dorrance has acknowledged that he
participated in group discussions of a jesting or teasing
nature with soccer team members. This is altogether inap-
propriate. While his actions were not intended to be offen-
sive, he now realizes that his involvement in such
discussions is inappropriate, and he will immediately dis-
continue that activity. Appropriate interventions have also
occurred with Coach Dorrance to address these unaccept-
able conversations.
The University and Coach Dorrance apologize for the
"money issue." He has maintained that he did not intend to
embarrass Melissa in any way. He recognizes that he
offended her and used poor judgment and for that he apolo-
gizes.
Coach Dorrance also realizes that his dismissal of Melissa
was ill-timed, and he apologizes for the untimely discussion
during the exam period.
(J.A. 1531.) Dorrance also signed the letter. (J.A. 1531.)
Athletic Director Baddour completed his investigation of Jennings’
complaints by reprimanding Dorrance in a letter dated June 10, 1998,
which stated:
As I indicated to you in our last meeting I am writing to
officially notify you that it is inappropriate for you to have
JENNINGS v. UNIVERSITY OF NORTH CAROLINA 41
conversations with members of your team (individually or
in any size group) regarding their sexual activity. Please
refer to my letter of June 9, 1998 to Craig Jennings.
(J.A. 1533.)
B
On August 25, 1998, at the beginning of Jennings’ third year at
UNC and a few months after she was cut from the team, Jennings
sued UNC and several individual defendants, including Dorrance,
alleging (1) a Title IX claim against UNC, (2) claims under 42 U.S.C.
§ 1983 against Dorrance for sexual harassment and invasion of pri-
vacy and against various UNC officials for failure to supervise Dor-
rance, and (3) a common law claim against Dorrance for invasion of
privacy. The district court granted the defendants’ motions for sum-
mary judgment, and a divided panel of this court affirmed. Jennings
v. Univ. of N.C., 444 F.3d 255 (4th Cir. 2006). A majority of this
court’s active members voted to grant Jennings’ motion to rehear this
case en banc.
II
Relying indiscriminately on the catalogue of statements made by
Coach Dorrance and various members of UNC’s soccer team, made
both before and after Jennings attended UNC, the majority concludes
that they created a severe and pervasive sexually hostile environment
that denied Jennings access to the opportunities and benefits of the
soccer program. The majority’s approach lacks any precision about
the meaning of comments, their connection with Jennings, their tim-
ing (some occurred before Jennings came to UNC), and their effect
on Jennings and the soccer program. A disciplined analysis of the
facts and their effect on Jennings can lead only to the conclusion that
the sexual banter, while extensive and inappropriate, did not deny
Jennings any educational opportunity. Indeed, she has never claimed
that it did. The majority’s analysis amounts in essence to an evalua-
tion of the vulgar language by Coach Dorrance and teammates rather
than an analysis of whether such violations of civility amount to a
cause of action under Title IX.
42 JENNINGS v. UNIVERSITY OF NORTH CAROLINA
While I agree that the sexual banter during soccer practices was
vulgar and inappropriate, both as to Coach Dorrance and the soccer
team members, the banter had no effect on whether Jennings played
soccer, or indeed whether she wanted to play soccer, at UNC. To the
contrary, despite the banter, Jennings deeply desired to be a member
of the team. When she was cut for reasons unrelated to sexual banter,
she was shocked and profoundly disappointed.
At bottom, Jennings made genuine complaints about vulgar sexual
banter, but there were no complaints that the sexual banter denied her
educational benefits. Therefore Jennings did not make out a Title IX
claim.
Before conducting the analysis demanded by Title IX, a review of
the statute’s requirements is necessary. This is particularly so because
the majority has misdescribed the requirements of a Title IX claim,
omitting the core requirement that the plaintiff demonstrate that she
was denied the benefits of an educational program or activity on the
basis of sex. See ante at 9.
Title IX prohibits an educational institution that receives federal
funds from engaging in sex-based discrimination. The statute pro-
vides, with certain exceptions not at issue here, that "[n]o person in
the United States shall, on the basis of sex, be excluded from partici-
pation 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). While Title IX does not, by its
terms, create a private cause of action against the funding recipient,
the Supreme Court has implied one, see Cannon v. Univ. of Chicago,
441 U.S. 677, 717 (1979), and it has held that money damages are
available in such suits, Franklin v. Gwinnett County Pub. Schools,
503 U.S. 60, 76 (1992). The damages remedy will lie against the
funding recipient, however, only when "an official who at a minimum
has authority to address the alleged discrimination and to institute cor-
rective measures on the [funding] recipient’s behalf has actual knowl-
edge of discrimination in the recipient’s programs" and responds with
"deliberate indifference to the discrimination." Gebser v. Lago Vista
Indep. Sch. Dist., 524 U.S. 274, 290 (1998).
As with Title VII, "sexual harassment" under Title IX is a form of
"discrimination." See Franklin, 503 U.S. at 74-75. In the context of
JENNINGS v. UNIVERSITY OF NORTH CAROLINA 43
student-on-student harassment, the Court has held that the harassment
must be "so severe, pervasive, and objectively offensive that it can be
said to deprive the victims of access to the educational opportunities
or benefits provided by the school." Davis v. Monroe County Bd. of
Educ., 526 U.S. 629, 650 (1999). But other than for student-on-
student harassment, the Court has not defined the substantive contours
of the harassment forbidden by Title IX. Nonetheless, courts of
appeals have looked to the Supreme Court’s Title VII jurisprudence
when interpreting Title IX. See, e.g., Frazier v. Fairhaven Sch.
Comm., 276 F.3d 52, 65-66 (1st Cir. 2002); Lam v. Curators of the
Univ. of Mo., 122 F.3d 654, 656-57 (8th Cir. 1997).
Because the Supreme Court implied in Davis that the "severe, per-
vasive, and objectively offensive" standard for student-on-student
harassment was more demanding than Title VII’s "severe or perva-
sive" standard for harassment generally, I agree with the majority that
the level of harassment required for actionable claims under Title IX
in the case of teacher-on-student harassment is Title VII’s "severe or
pervasive" standard. See Harris v. Forklift Sys. Inc., 510 U.S. 17, 21
(1993); Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986).
This standard, of course, must be applied with sufficient discipline
that the standard does not become a "general civility code." Faragher
v. City of Boca Raton, 524 U.S. 775, 788 (1998).
Much more significant to Title IX liability, however, is the analysis
required for determining when a given level of harassment brings
about consequences with which Title IX is concerned. To succeed in
a Title IX harassment claim, the plaintiff must prove that the harass-
ment was so severe or pervasive "that it can be said to deprive the
[plaintiff] of access to the educational opportunities or benefits pro-
vided by the school." Davis, 526 U.S. at 650. This requirement of
specified consequences derives from the text of Title IX itself, which
shields students from "discrimination," such as being "excluded from
participation in" or "denied the benefits of" any "education program
or activity receiving Federal financial assistance" on the basis of sex.
20 U.S.C. § 1681(a). Therefore, harassment standing alone, no matter
how severe or pervasive, is not actionable; it must have the effect of
discriminating so that it effectively denies students of "equal access
to an institution’s resources and opportunities." Davis, 526 U.S. at
651; see also 20 U.S.C. § 1681(a). Title IX’s purpose is not to eradi-
44 JENNINGS v. UNIVERSITY OF NORTH CAROLINA
cate harassment from the educational environment; it is "a specific
federal statute designed primarily to prevent recipients of federal
financial assistance from using the funds in a discriminatory manner."
Gebser, 524 U.S. at 292.
Thus, Jennings must show that she was subjected to harassment —
because of her sex — so objectively severe or pervasive that she was
effectively denied equal access to UNC’s resources and opportunities.
III
In this case, Jennings’ evidence, while amply describing instances
of sexual banter among teammates and Coach Dorrance, falls far
short of demonstrating that Jennings was denied the benefits of soccer
team membership. She has never alleged that she did not want to be
a member of the team or that the banter denied her the benefits of
membership. Indeed, she wanted to remain on the team and believed
that her improvements in performance justified remaining on the
team. She was shocked and angered when she was cut.
Moreover, Jennings complained only once to UNC officials during
her two years on the team about the banter and then at such a low
level that the person to whom she complained did not recall it. In
addition, when Jennings’ father wrote on Jennings’ behalf about prob-
lems that Jennings had encountered with the soccer program — a lack
of reimbursement and invitations to parties at which alcohol was
served — he did not mention any sexual banter or harassment. Only
after Jennings was cut from the team were accusations of sexual
harassment made.
Jennings has tried to argue that she was denied an educational ben-
efit by asserting conclusorily and without factual support that Dor-
rance’s conduct "negatively impacted [her] academic performance
and performance on the soccer field." (J.A. 1585.) Yet, the record
shows that when, over the course of two years, she was confronted
with her poor academic and field performance, her response never
suggested a problem with Dorrance’s conduct. Rather, the discussions
focused on more disciplined training and more time for academics.
Moreover, the record shows that Jennings did improve academically
each semester. (J.A. 1449.) More revealing is Jennings’ own evalua-
JENNINGS v. UNIVERSITY OF NORTH CAROLINA 45
tion of herself that she was doing better. As she testified, when she
was cut, she was expecting Dorrance to say to her, "You know,
you’ve improved." (J.A. 1388.)
It is not surprising therefore that Jennings’ argument on appeal
focuses entirely on whether Dorrance’s conduct was severe or perva-
sive, rather than on whether she was denied an educational benefit.
The majority simply continues this emphasis by ignoring or misstat-
ing the core requirement of Title IX liability that conduct deprive a
plaintiff of "equal access to an institution’s resources and opportuni-
ties." Davis, 526 U.S. at 651; see also 20 U.S.C. § 1681(a). The
majority completely and inexplicably omits this core requirement
from its boilerplate recitation of the necessary elements for "estab-
lish[ing] a Title IX claim on the basis of sexual harassment." See ante
at 9.
When the majority does purport to address the omitted require-
ment, it holds that Jennings may satisfy the requirement by merely
alleging that Dorrance’s comments had a "negative impact" on her
"performance on the soccer field." See ante at 17. This holding stands
on a complete misreading of Davis. If the majority sincerely believes
that the Supreme Court "point[ed] out that sexual harassment reaches
the level of actionable discrimination when it has ‘a concrete, nega-
tive effect on [the victim’s] ability’ to participate in a program or
activity," see ante at 15 (quoting Davis, 526 U.S. at 654), it has bla-
tantly ignored the entire portions of the opinion that actually define
the cause of action. Contrary to the majority’s representation of
Davis, the Supreme Court reiterated five separate times that Title IX’s
discrimination requirement is satisfied "only where [the harassment is
so severe or pervasive] that it can be said to deprive the victims of
access to the educational opportunities or benefits provided by the
school." See Davis, 526 U.S. at 654 (emphasis added); id. at 633
(same); id. at 651 (same); id. at 652 (same); id. at 653 (same). It was
only when the Court applied "this standard to the facts at issue" that
it stated the following: "The harassment was not only verbal; it
included numerous acts of objectively offensive touching, [including]
criminal sexual misconduct. . . . Further, petitioner contends that the
harassment had a concrete, negative effect on her daughter’s ability
to receive an education." Id. at 653-54. It is almost too obvious to
state, but the petitioner’s isolated contention in Davis did not define
46 JENNINGS v. UNIVERSITY OF NORTH CAROLINA
what it means to "discriminate" under Title IX, as the majority appar-
ently believes.4 The Court accepted that allegation as part of a com-
plaint that included allegations of "objectively offensive touching" of
the plaintiff amounting to "criminal sexual misconduct." The majori-
ty’s importation of and heavy reliance upon a watered-down "nega-
tive impact" test, derived from a single allegation in the Davis
petitioner’s complaint, is obviously wrong, particularly when the
Court specifically and repeatedly articulated the Title IX cause of
action.
The majority’s gutting of the "denial of benefit" requirement is not
only contrary to the Supreme Court’s pronouncements in Davis, but
more importantly, it contravenes the actual text of the statute, which
only shields students from "discrimination," such as being "excluded
from participation in" or "denied the benefits of" any "education pro-
gram or activity." See 20 U.S.C. § 1681(a) (emphasis added).
The acts of sexual harassment alleged by Jennings can be divided,
for discussion purposes, into three categories: (1) "sexual" banter at
practice directed at or involving Jennings; (2) other sexual banter at
practice among teammates and Coach Dorrance; and (3) the Decem-
ber 1996 evaluation meeting between Jennings and Dorrance at which
Dorrance inquired, as part of his effort to discover the cause of Jen-
nings’ poor grades, who Jennings was "f**king." I address these in
turn.
A
Jennings identified two incidents during her two years on the team
when the banter at practices involved or implicated her.
The first incident arose prior to a practice when one of Jennings’
teammates recounted her weekend’s activities with her boyfriend, and
Dorrance asked if it had been a "shag fest." (J.A. 1249.) The team-
4
Indeed, the majority even waters down the petitioner’s allegation in
Davis. In Davis, the petitioner contended that the harassment had a "con-
crete, negative effect on her daughter’s ability to receive an education."
Davis, 526 U.S. at 654. The majority converts "receive an education" to
"participate in a program or activity." Ante at 15.
JENNINGS v. UNIVERSITY OF NORTH CAROLINA 47
mate, seeking to involve Jennings in the conversation and knowing
that Jennings had visited her boyfriend at a different university the
previous weekend, asked, "What about Trim’n?" (J.A. 1246-48,
1252.) Dorrance "chimed in," saying, "yes, what about Trim’n?" (J.A.
1246, 1252.) Jennings ignored these questions from her teammate and
Dorrance and left for the practice field. (J.A. 1255.)
Dorrance’s question was an offhand comment amounting to "sim-
ple teasing." It was Jennings’ teammate who instigated the efforts to
involve Jennings in the conversation, and Dorrance’s question was
merely a follow-up to hers. The only reason the question even
achieves the status of "simple teasing," instead of being utterly innoc-
uous, is because of Dorrance’s earlier "shag fest" comment to Jen-
nings’ teammate. A "recurring point" in the Supreme Court’s Title
VII opinions, however, is that "‘simple teasing,’ offhand comments,
and isolated incidents (unless extremely serious) will not amount to
discriminatory changes in the ‘terms and conditions of employment.’"
Faragher, 524 U.S. at 788 (citation omitted). The Court’s "standards
for judging hostility are sufficiently demanding" to "filter out com-
plaints attacking the ordinary tribulations" of collegiate athletics,
"such as the sporadic use of abusive language, gender-related jokes,
and occasional teasing." Id. (citation and quotation marks omitted).
This incident certainly falls within the "simple-teasing" category.
The second incident involved a teammate asking Jennings whether
a boy she had seen Jennings hug was a boyfriend or just a friend.
(J.A. 1257-59.) Jennings responded that the boy was just a friend.
(J.A. 1258.) As for Dorrance’s involvement, Jennings remembers him
being present but saying nothing. (J.A. 1258.) Not even the majority
relies on this incident, for reasons that are obvious — it could neither
stand alone as an incident of sexual harassment nor add to a collection
of incidents constituting sexual harassment.
B
The sexual banter at practices among teammates and Coach Dor-
rance also does not rise to sexual harassment of Jennings. Jennings
rightfully places herself as a bystander during this banter. When there
is an absence of sexual harassment directed at a plaintiff, however,
48 JENNINGS v. UNIVERSITY OF NORTH CAROLINA
environmental conduct voluntarily engaged in by others has never
supported a claim for sexual harassment.
In the two cases where we have most relied on background conduct
in applying the "severe or pervasive" standard, the direct harassment
of the plaintiff still provided the foundation for the hostile environ-
ment claim. In Spriggs v. Diamond Auto Glass, 242 F.3d 179 (4th Cir.
2001) (Spriggs II), we took into account environmental conduct as
enhancing conduct specifically directed at the plaintiff. But the core
of the harassment claim in Spriggs was based on a white supervisor
repeatedly calling his African-American subordinate, "dumb monkey"
and "nigger," during the relevant employment period. See Spriggs v.
Diamond Auto Glass, 165 F.3d 1015, 1017 n.2 (4th Cir. 1999)
(Spriggs I). Similarly, in Ocheltree v. Scollon Prod. Inc., 335 F.3d
325 (4th Cir. 2003) (en banc), we took environmental conduct into
account, but primarily to enhance the core sexual harassment directed
at the plaintiff, who was a female. The targeted harassment included
male co-workers confronting the plaintiff with a pornographic picture
depicting pierced male genitalia; simulating oral sex on a mannequin
while fondling the mannequin’s breasts in front of the plaintiff in
order to rile and offend her; and singing to the plaintiff, in an operatic
voice, "Come to me, oh, baby come to me, your breath smells like
come to me." Id. at 328.
In cases where there was a scarcity of direct harassment, however,
the plaintiffs could not rely on environmental conduct to make their
claim. See, e.g., Hopkins v. Baltimore Gas & Elec. Co., 77 F.3d 745,
753-54 (4th Cir. 1996) (upholding entry of summary judgment against
complainant because of his overreliance on incidents "not directed
specifically at him," such as those occurring in "group settings").
Moreover, the Supreme Court itself has assumed throughout its
Title VII and Title IX cases that only harassment directed and tar-
geted at the victim was capable of creating a hostile environment. In
Meritor, for example, "sexual harassment" was defined as "unwel-
come sexual advances, requests for sexual favors, and other verbal or
physical conduct of a sexual nature." 477 U.S. at 65 (citation and quo-
tation marks omitted) (emphasis added). In Harris, the Court stated
that the workplace must be "permeated with discriminatory intimida-
tion, ridicule, and insult." 510 U.S. at 21 (citation and quotation
JENNINGS v. UNIVERSITY OF NORTH CAROLINA 49
marks omitted). But the intimidation, ridicule, and insults in Harris,
as elsewhere, targeted the victim. 510 U.S. at 19 (stating the victim
was made "the target of unwanted sexual innuendos"). Thus, in Davis,
the student was not only verbally assaulted, but was also touched in
a manner that amounted to "criminal sexual misconduct." 526 U.S. at
653. In Faragher, the complainant faced "uninvited and offensive
touching" and such choices as, "[d]ate me or clean the toilets for a
year." 524 U.S. at 780. In Oncale v. Sundowner Offshore Services,
Inc., 523 U.S. 75, 77 (1998), the complainant "was forcibly subjected
to sex-related, humiliating actions against him," such as being "physi-
cally assaulted . . . in a sexual manner" and being "threatened with
rape." These examples fairly reflect the Court’s consistent teaching
that Title VII and Title IX protect victims, not witnesses, of harass-
ment.
In short, the indirect sexual banter of which Jennings complains
cannot on its own support Jennings’ harassment claim. Nor does it
heighten the discriminatory impact of the one instance of simple teas-
ing directed at her so as to satisfy the demanding requirement that the
harassment be so "severe or pervasive" that it "effectively bar[ ] the
victim’s access to an educational opportunity or benefit." Davis, 526
U.S. at 633.
C
The third and perhaps principal incident of which Jennings com-
plains occurred during Jennings’ end-of-year personal progress meet-
ing in December 1996. It arose from Dorrance’s inquiry into the
causes for Jennings’ poor academic performance during her first
semester at UNC. Jennings’ GPA at the time was 1.538 on a 4.0 scale.
(J.A. 1449.) During the meeting, Dorrance impressed upon her the
importance of her studies, telling her that she "ha[d] to study" and "do
better in school." (J.A. 1316.) He then sought to find the causes of
Jennings’ poor academic performance, as a responsible coach who
risked losing a player due to academic ineligibility would do. Dor-
rance asked Jennings if she needed help, if she had been visiting the
team’s academic tutor (which she had been). (J.A. 1318.) He then
wondered whether Jennings’ social life was affecting her grades, ask-
ing, according to Jennings’ testimony, "What is going on in [your]
social life? Is that affecting [your] grades?" (J.A. 1329-30.) "Who are
50 JENNINGS v. UNIVERSITY OF NORTH CAROLINA
you f**king?" "[I]s that affecting your grades?" "[Is that] causing a
problem with your grades, with your performance?" (J.A. 1326,
1330.) Jennings forcefully replied that her personal social life was
"[n]one of his god damn business." (J.A. 1325-26, 1331.) Dorrance
immediately dropped the subject, and according to Jennings, "started
talking about my performance as a player." (J.A. 1327.)
As phrased, Dorrance’s question "Who are you f**king" was
plainly vulgar and certainly too personal. Nonetheless, the inquiry
clearly did not focus on sex or include an overture to sex; it was, in
context, obviously an inquiry about what was occupying Jennings’
time. Jennings bordered on the verge of becoming academically ineli-
gible to play soccer, and Dorrance, as her coach, intervened, asking
if her grades were being adversely affected by her social life. Dor-
rance’s question about Jennings’ sex life was not physically threaten-
ing; it was not a sexual proposition; it was not made in an attempt to
humiliate, degrade, and demean. See Harris, 510 U.S. at 23 (differen-
tiating between the "physically threatening or humiliating" comment
and the "mere offensive utterance"). Rather, the question was asked
in an effort to discover the cause of Jennings’ poor academic perfor-
mance. Dorrance’s use of profanity and his inquiry into a personal
subject for purposes of a legitimate inquiry about Jennings’ time does
not transform the single, isolated question into a "severe" example of
sexual harassment. The context and purpose of the question, indeed,
removed it from any consideration as sexual harassment of the kind
prohibited by Title IX. See Harris, 510 U.S. at 21 ("‘[M]ere utterance
of an . . . epithet which engenders offensive feelings in an employee
does not sufficiently affect the conditions of employment to implicate
Title VII" (quoting Meritor, 477 U.S. at 67)).
* * *
Jennings cites no other incidents to support her claim, and she testi-
fied at the end of her deposition that this was all that she knew. (J.A.
1430-31.) She only became aware of other evidence — evidence upon
which the majority relies heavily — after the commencement of this
action. We are thus left with one simple incident of teasing, the
team’s sexual banter which Jennings overheard, and one coarsely
posed question about what time-consuming distraction might be
affecting Jennings’ grades.
JENNINGS v. UNIVERSITY OF NORTH CAROLINA 51
To evaluate such evidence for liability, courts must determine
whether an environment is sufficiently hostile or abusive "by looking
at all the circumstances," Harris, 510 U.S. at 23, including the context
of the case, which in this case is the collegiate athletic field. See
Oncale, 523 U.S. at 81 (explaining that a football player’s environ-
ment "is not severely or pervasively abusive . . . if the coach smacks
him on the buttocks as he heads onto the field —- even if the same
behavior would reasonably be experienced as abusive by the coach’s
secretary (male or female) back at the office"). The collegiate athletic
field is unlike the typical classroom, and the collegiate athletic coach
is unlike the typical university instructor. The proper baseline by
which to judge the language of Coach Dorrance and Jennings’ team-
mates is the world of competitive collegiate athletics in which
coaches, by necessity, have a much more casual and personal relation-
ship with their student-athletes. While vulgarity of the level witnessed
by Jennings was surely not necessary to the program, it is undoubt-
edly normal for a coach to have discussions with a player about his
or her body, athletic performance, academic performance, inter-player
relationships, social activities, and extracurricular activities. College
sports, especially an elite program like women’s soccer at UNC,
involve long and intensive daily practice sessions, extensive overnight
travel, and a significant amount of downtime spent together.
Some coaches use profanity or sarcasm as a way to express dis-
pleasure, to emphasize a point, or to motivate. Dorrance, according to
Jennings, cursed when his players made mistakes, such as when a
player made a poor pass. (J.A. 1231.) But Title IX does not protect
students from profanity. See McWilliams v. Fairfax County Bd. of
Supervisors, 72 F.3d 1191, 1196 (4th Cir. 1996) (holding that Title
VII does not protect employees from discrimination "‘because of’ [the
harasser’s] vulgarity and insensitivity and meanness of spirit").
The critical inquiry in this case, as in all Title IX cases, is whether
the alleged harassment was so objectively "severe [or] pervasive . . .
that it can be said to deprive [Jennings] of access to the educational
opportunities or benefits provided by the school." Davis, 526 U.S. at
650. The majority’s application of a simple "negative impact" test —
whether Dorrance’s comments had a "negative impact" on Jennings’
"performance on the soccer field," ante at 17 — is simply inconsistent
with the governing statute and with Supreme Court precedent, both
52 JENNINGS v. UNIVERSITY OF NORTH CAROLINA
of which require that the harassment actually "discriminate" by "de-
priv[ing] the [plaintiff] of access to . . . educational opportunities or
benefits." See 20 U.S.C. § 1681(a); Davis, 526 U.S. at 650.
On this record, it cannot be said that Dorrance’s language effec-
tively excluded Jennings from participating as a member of UNC’s
women’s soccer team, especially in light of Jennings’ own testimony.
And her empty assertion, made conclusorily in a litigation affidavit,
that Dorrance’s conduct "negatively impacted" her performance is
completely undermined by her own testimony of the events. When
Dorrance cut her from the team, Jennings testified that she was
shocked and hysterically upset at being cut because she thought she
had been improving as a player. She thought she had done well, doing
everything she could to become a better player under Dorrance’s
direction. In Jennings’ own words, "I was not expecting to get cut. I
was expecting [Dorrance] to say, ‘You know, you’ve improved,’ this
and this. I thought I had done well. . . . I was, you know, making
every possible attempt to do what he had asked." (J.A. 1388.) This
testimony hardly depicts a player who has been sexually harassed to
the point of being denied the educational opportunity of playing on
the team. The majority’s effort to depict the environment on the soc-
cer team as one that denied Jennings (or any other player, for that
matter) the benefits of playing soccer is belied by this testimony.
Furthermore, Jennings’ grade point average progressively
improved during her two seasons on the team. Her cumulative GPA
at the end of her freshman year was 1.539, at the end of the 1997
summer sessions it was 1.903, at the end of the fall 1997 semester it
was 1.964, and at the end of the 1998 spring semester, when she was
cut from the team, it was 2.022. (J.A. 1449.) If a decline in grades is
evidence of discriminatory impact, then an improvement in grades
should be evidence otherwise. Cf. Davis, 526 U.S. at 652 (stating that
even "a mere decline in grades" is insufficient to prove that the
alleged harassment has deprived a student of access to school
resources). A player, who not only does not leave a team or school,
but also has a willingness or indeed a growing desire to remain with
the team or school, must surely have to make an extraordinary show-
ing to sustain a Title IX claim.
The majority fails to confront the legal consequences that flow
from the undisputed fact that Jennings’ evidence consists of (1) only
JENNINGS v. UNIVERSITY OF NORTH CAROLINA 53
two direct verbal comments made over the course of two years, and
(2) second-hand comments that neither paint women in a negative or
demeaning light, nor constitute anything approaching sexual
advances, threats, coercion, or intimidation. In the face of her team-
mates’ graphic, detailed, and open descriptions of their sexual
exploits, Jennings complains of Dorrance going too far in his teasing.
But however this environmental language is characterized, it falls
woefully short of elevating the two verbal comments directed at Jen-
nings to a level at which one could conclude that Jennings was denied
the benefits of playing soccer for UNC. As Jennings’ own testimony
provides, it was her substandard conditioning, performance, and
grades that did that.
IV
Jennings’ Title IX claim must fail for another, independent reason.
Dorrance’s comments were not gender-based, in that they were not
made because Jennings was a woman. Title IX prohibits discrimina-
tion "on the basis of sex." 20 U.S.C. § 1681(a). A person "is harassed
or otherwise discriminated against [‘on the basis of’] his or her sex
if, ‘but for’ the employee’s sex, he or she would not have been the
victim of the discrimination." Wrightson v. Pizza Hut, 99 F.3d 138,
142 (4th Cir. 1996). "The critical issue" is "whether members of one
sex are exposed to disadvantageous terms or conditions . . . to which
members of the other sex are not exposed." Harris, 510 U.S. at 25
(Ginsburg, J., concurring).
The direct harassment of which Jennings complains was in no way
related to her gender. Dorrance asked, "What about Trim’n?", not
because Jennings is a woman, but because he and a teammate wished
to engage Jennings in a conversation about her dating life. Her gender
was irrelevant to the question. Even more plainly, Dorrance did not
ask Jennings about her sex life in December 1996 because of her gen-
der, but because he was trying to discover the cause of Jennings’ sub-
standard academic performance. Jennings’ gender played no role in
Dorrance’s question.
Furthermore, there is no evidence on the record from which to infer
that "but for" Jennings’ gender, Dorrance would have refrained from
teasing Jennings about her dating life and from asking whether her
54 JENNINGS v. UNIVERSITY OF NORTH CAROLINA
sex life was affecting her grades. An integral attribute of Dorrance’s
coaching style was his willingness to engage his players on a personal
and frank level. If Dorrance was then the coach of the men’s soccer
team, he would just as surely have teased his male players about their
weekends with their girlfriends as he lightly teased Jennings about her
weekend with her boyfriend. Such teasing about a player’s social life
is the norm on any collegiate athletic team, whether male or female.
Indeed, Jennings had the opportunity to present evidence that Dor-
rance treated women differently than men, as Dorrance simulta-
neously coached both the men’s and women’s soccer teams at UNC
from 1979 to 1988. But the record remains silent about any such dif-
ference.
In addition, there is no evidence that Dorrance’s inquiry about Jen-
nings’ social life was gender-based. Responsible coaches, whether of
a men’s or women’s athletic team, search for the cause of a player’s
borderline academic ineligibility, including whether the player’s
social life is interfering. While Dorrance posed his question too
crassly and personally, the question nonetheless was a grade-centered
inquiry and not an inquiry made because Jennings was a woman.
There is no evidence on the record that "but for" Jennings’ gender,
Dorrance would not have teased about her weekend or asked whether
her sex life was affecting her grades.
As for the second-hand sexual banter, its relevance becomes yet
more remote when considering whether Jennings was exposed to the
banter because of her gender. There is no evidence that distinguished
her environment from a male environment, where players would
undoubtedly hear the same banter. She was exposed because she was
a member of the team, not because she was a woman. At the begin-
ning of oral argument, Jennings’ counsel conceded that there would
be no case if every fact were the same except that the team was full
of male players "because [in that hypothetical] it would not be gender
based." This concession is fatal because it necessarily relied on a fur-
ther concession — that the evidence, standing alone, could not show
that Jennings was discriminated against because of her sex.
Moreover, it would be ridiculous to infer that Dorrance’s com-
ments were motivated by general hostility toward the presence of
women on a women’s soccer team, when he was the coach of the
JENNINGS v. UNIVERSITY OF NORTH CAROLINA 55
team. See Oncale, 523 U.S. at 80 (stating that when the harassing con-
duct is not motivated by sexual desire, an inference of gender-
motivated harassment may still be derived if a victim "is harassed in
such sex-specific and derogatory terms . . . as to make it clear that the
harasser is motivated by general hostility to the presence of women
[or men] in the [educational setting]"). Indeed, Dorrance has been the
head coach of the women’s team for 27 years (since 1979), leading
his players to 19 national championship titles. This duration and suc-
cess rate makes any inference that Dorrance is generally hostile to
young women soccer players even more preposterous.
"Whatever evidentiary route the plaintiff chooses to follow, he or
she must always prove that the conduct at issue was not merely tinged
with offensive sexual connotations, but actually constituted ‘discrimi-
nation [on the basis of sex].’" Oncale, 523 U.S. at 81. The evidentiary
route that Jennings has chosen, for the reasons given, does not prove
discrimination "on the basis of sex." See 20 U.S.C. § 1681(a).
V
Jennings seeks to hold Dorrance and Ehringhaus personally liable
for sexual harassment under 42 U.S.C. § 1983, basing her claim on
her Fourteenth Amendment equal protection right to be free from sex-
ual harassment in educational settings. The Equal Protection Clause
confers a right to be free from gender discrimination that is
not substantially related to important governmental objec-
tives. Applying this precept, courts have held that inten-
tional sexual harassment of employees by persons acting
under color of state law violates the Fourteenth Amendment
and is actionable under § 1983. Courts may apply the stan-
dards developed in Title VII litigation to similar litigation
under § 1983.
Beardsley v. Webb, 30 F.3d 524, 529 (4th Cir. 1994) (citations and
quotation marks omitted).
Because Jennings has failed to demonstrate that Dorrance’s lan-
guage was so severe or pervasive as to deny her the opportunity to
play soccer for UNC, it follows that her § 1983 claim must also fail.
56 JENNINGS v. UNIVERSITY OF NORTH CAROLINA
VI
Participation in intercollegiate athletics involves, of necessity, a
level of physical and mental training that toughens a player in compe-
tition. It is not the same type of training that attends participation in
a chamber orchestra or a debate team. Driving players to reach
beyond their physical limits often involves yelling, encouragement,
and condemnation. We can hardly apply the standards of the class-
room or the courtroom to the language of the athletic field.
Of course, the environment cannot provide a cover for discrimina-
tion, including sexual harassment. In disposing of a case as this, we
must discern the difference without imposing a civility code.
In the context of this case, Title IX presents the narrow issue of
whether a player — in this case Jennings — was denied the benefits
of the soccer team because of Coach Dorrance’s comments. It is crys-
tal clear that she did not think so until after she was cut from the team.
From her anger and disappointment in being cut — concededly not
because of sexual discrimination — she pursues this unfortunate law-
suit to complain about vulgar language that surely did offend her, and
rightfully so. But Title IX requires more.
For these reasons, I would affirm the judgment of the district court.
Judge Williams has authorized me to indicate that she joins in this
opinion.