Doe, Jane v. University of Wisconsin - Madison

OPINION AND ORDER granting 14 Motion for Summary Judgment; denying as moot 33 Motion to Stay. Signed by District Judge William M. Conley on 7/17/2020.

Western District of Wisconsin, wiwd-3:2019-cv-00169

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Case: 3:19-cv-00169-wmc Document #: 34 Filed: 07/17/20 Page 1 of 17 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN JANE DOE, Plaintiff, OPINION AND ORDER v. 19-cv-169-wmc BOARD OF REGENTS FOR THE UNIVERSITY OF WISCONSIN SYSTEM, Defendant. In the summer of 2018, plaintiff Jane Doe attended a college-access program run by the University of Wisconsin-Madison for eighth through twelfth graders. During a field trip to a local pool, another high school student, who will be referred to in this opinion as "M,"1 touched Doe's buttocks several times, as well as grabbed her around the waist, stomach, and thighs -- all without Doe's consent. Two days later, while Doe was laying on a friend's bed in a dorm room, M also jumped on top of Doe, restrained her wrists for 15-20 seconds, and after releasing her, put a sticker on Doe's shorts over her buttocks. The day after Doe complained about these events to staff, the University suspended M from the summer program and sent her home. By the summer of 2019, Doe herself had also been removed from the program due to poor academics during the school year, which she attributes to the emotional trauma of M's misconduct. In this lawsuit, plaintiff claims that the Board of Regents for the University of Wisconsin System's failure to respond adequately to M's past harassment of other students effectively deprived Doe of educational opportunities in violation of Title IX. Before the court is defendant's motion for summary judgment (dkt. #14), which will be granted for the reasons explained below. 1 All of the students involved in this case, including Doe and M, as well as "Z" and Z's girlfriend, were underage girls at the time of the incidents referred to in this opinion and, therefore, they will all be referred to by pseudonyms or an initial. Case: 3:19-cv-00169-wmc Document #: 34 Filed: 07/17/20 Page 2 of 17 UNDISPUTED FACTS2 A. PEOPLE Program The Precollege Enrichment Opportunity Program for Learning Excellence ("PEOPLE") Program is a college-access program headquartered at the University of Wisconsin-Madison ("UW-Madison"). The purpose of the PEOPLE Program is to help high school age students prepare to be viable college candidates. Among other conditions, students are required to maintain a cumulative 2.75 grade point average in order to continue participating in the program. During the summer, the program runs the "PEOPLE Summer University," which is designed to expose students to a college-like experience first-hand. Students in the Summer University program stay in dorms on the UW-Madison campus, take classes, and participate in extracurricular activities. Both plaintiff Jane Doe and M attended the PEOPLE Summer University in 2017 and 2018, although they did not meet until the summer of 2018. B. 2017 Summer University Events In 2017, Dartaja Carr -- a PEOPLE Program "residential mentor" -- had learned that M was "touchy-feely" and was instigating problems with other students, including being "manipulative." That summer, M was also "having some drama" with another PEOPLE Program student, "Z," and her girlfriend. Specifically, M had posted a picture of herself and Z on Snapchat, which prompted Z's girlfriend to confront Z. Apparently in response, Z gave M's phone number to her girlfriend, and they began arguing over Snapchat. At some point during the summer of 2017, M also tried to hold Z's hand. In addition to Z's complaints, approximately three other students complained about M being in the middle of this same "gossip." (See Pl.'s PFOF (dkt. #31) 2These facts are drawn from the parties' proposed findings and facts and deemed material and undisputed for the purposes of summary judgment, unless otherwise indicated. 2 Case: 3:19-cv-00169-wmc Document #: 34 Filed: 07/17/20 Page 3 of 17 ¶ 96; Hunter Dep. (dkt. #21) 91:2-25.) Later that same summer, University Pre-college Advisor Sarita Foster and Program Manager Kia Hunter received an Information Services Form ("ISF") about M over these incidents.3 After Hunter received the ISF, she spoke with both Z and M separately. In speaking with M in particular, Hunter explained that Z was uncomfortable with both her social media contact and attempt at hand-holding. After her discussions with M and Z, Hunter also informed their residential mentors that the two girls were not to have any further contact with one another. This was the only disciplinary action taken in response to the 2017 ISF complaint, although Hunter warned M that if her name were to come back across her desk, there would be more severe consequences. As further evidence of M's 2017 misconduct, plaintiff points to a 2018 ISF report written by Residential Mentor Carr, stating: "Today, I was informed that M was feeling on another student's butt while at Goodman Pool. M also did this last year." (Pl.'s PFOF (dkt. #31) ¶¶ 70, 121.) While defendant objects to plaintiff's use of this evidence on hearsay grounds, the statement may be admitted to show Carr's knowledge of that harassment. See Franchina v. City of Providence, 881 F.3d 32, 50 (1st Cir. 2018) (out-of-court statements admissible for purpose of demonstrating that defendant knew or should have known of alleged harassment). 4 3 Plaintiff concedes that she does not have evidence to dispute this fact, (see Def.'s PFOF (dkt. #32) ¶ 41), however, she points out that this 2017 ISF could not be located because the PEOPLE Program had an informal policy of shredding ISFs each year to ensure that sensitive student information was not released (Pl.'s PFOF (dkt. #31) 134). Thus, this proposed fact is based not on the form itself, but rather Foster's and Hunter's deposition testimony. (See Def.'s PFOF (dkt. #32) ¶¶ 41-42.) 4 To the extent that plaintiff intended to use the ISF report for the truth of the matter asserted -- that M felt another student's butt in 2017 -- the court sustains defendant's objection. See Fed. Rule of Evidence 801 (defining hearsay as an out-of-court statement offered to prove the truth of the matter asserted). While the Federal Rules of Evidence exempt certain business records from the hearsay rule, to fall under this exception, the record must have been made "at or near the time by" the act recorded, Fed. Rule of Evidence 803(6)(A), and the statement "M also did this last year" was written one year after M's alleged misconduct. Accordingly, Carr was not recording her recollection "at or near the time" of M's alleged act, and so the statement does not fall under the business records exception. 3 Case: 3:19-cv-00169-wmc Document #: 34 Filed: 07/17/20 Page 4 of 17 Plaintiff also references another document created in 2018 as evidence of M's 2017 misconduct; namely, a "Case Supplemental Report" written by Peter Grimyser, a Detective at the University of Wisconsin Police Department. (Pl.'s PFOF (dkt. #31) ¶ 155.) In July of 2018, Grimyser interviewed Foster, after which he recorded in his report that: Sarita Foster told me last summer [M] had gotten into trouble for "sexual harassment, touching other women in their intimate parts and inappropriate talking" that two female students had come forward to make reports (including one who claimed that she touched her on her buttocks). Sarita Foster said that [she] had similar issues with [M] this summer. (Simcox Decl., Ex. 3 (dkt. #15-3) 11; Pl.'s PFOF (dkt. #31) ¶ 70.) Foster, in her deposition in this case, testified that she had been misquoted and, after seeing the report, she complained about the error to Cheryl Gittens, a Vice Provost at UW-Madison. (Def.'s PFOF (dkt. #32) ¶ 105 (citing Foster Dep. (dkt. #19) 84:20-25.)5 Grimyser, for his part, testified in his deposition that his report accurately recorded what Foster told him. (Pl.'s PFOF (dkt. #31) ¶ 154 (citing Grimyser Dep. (dkt. #20) 21:9-22:12.) As with the Carr report, the Grimyser report is not admissible for the proof of the underlying matter asserted -- that M had harassed and non-consensually touched students in 2017. See Fed. Rule of Evidence 801; Jordan v. Binns, 712 F.3d 1123, 1133 (7th Cir. 2013) ("[T]hird-party statements contained in a police report do not become admissible for their truth by virtue of their presence in a public record and instead must have an independent basis for admissibility."). Moreover, because the report contains two levels of hearsay -- it is Grimyser's written, out-of-court statement recording Foster's out-of-court statement -- is not admissible even to show defendant's knowledge of the alleged harassment. In a similar case, the Seventh 5 Specifically, Foster explained that "[t]he information in the beginning, 'Sarita told me last summer,' that is incorrect. . . . I did tell him about the sexual harassment, touching a woman in their intimate parts and inappropriate talking. That quote is correct. But it didn't happen last summer, being summer of 2017. That would have happened in summer of 2018." (Foster Dep. (dkt. #19) 108:20-109:3.) 4 Case: 3:19-cv-00169-wmc Document #: 34 Filed: 07/17/20 Page 5 of 17 Circuit rejected the admissibility of an assistant principal's notes taken during interviews of students and parents as a part of a Title IX investigation. See Davis v. Carmel Clay Sch., 570 F. App'x 602, 605-06 (7th Cir. 2014). The court concluded that even if the notes themselves were admissible under the business records exception, the statements of the students and parents contained within the notes would not be admissible and, therefore, could not be considered even as evidence of the school's knowledge of the alleged violations. Id. However, plaintiff partially makes up for this evidentiary problem by offering Grimyser's deposition testimony. (See Pl.'s PFOF (dkt. #31) ¶¶ 152-55.) While arguably vague, Grimyser testified under oath that Foster told him that M also got into trouble for sexual harassment in 2017 by touching other women in their intimate parts, touching one student on her buttocks, and inappropriate talking.6 Plaintiff does not attempt to use this testimony to prove the underlying truth of the matter asserted -- M's 2017 misconduct -- but rather as evidence of what Foster told Grimyser. (See id.) This is permissible, as it is not hearsay and is relevant to show Foster's knowledge of M's misconduct. In response, defendant does not challenge the admissibility of this evidence for proof of knowledge, but rather points again to Foster's testimony that she was misquoted, merely establishing a dispute of fact not negating Grimyser's testimony. (See id.) 6The deposition transcript includes the following exchange: Q. . . The second paragraph states, "Sarita Foster told me last summer M had gotten into trouble for," quote, "Sexual harassment, touching other women in their intimate parts and inappropriate talking," end quote, "That two female students had come forward to make reports (including one who claimed she touched her on her buttocks)." Do you see that paragraph? A I do. Q And the last summer would have been the summer of 2017; is that right? A Correct. Q And you put sexual harassment, touching other women in their intimate parts and inappropriate talking in quotes. Is that because those were the actual words that Sarita Foster used? A Yes. (Grimyser Dep. (dkt. #20) 21:9-25.) 5 Case: 3:19-cv-00169-wmc Document #: 34 Filed: 07/17/20 Page 6 of 17 C. 2018 Summer University Events In preparation for the 2018 Summer University Program, Foster -- who by that time held the position of Program Coordinator and was in charge of all female housing -- assigned M and Z to different resident mentors because of the 2017 complaints. Despite having different resident mentors, M and Z were in the same afternoon classes in 2018, and M would apparently touch Z's arm or shoulders or whisper things into her ear on the way to or on the way back from class. The parties do not dispute that, at some point, Z complained to her Residential Mentor, who was again Carr, about this behavior, but they do not agree on