Opinion
Civil No. 98-1246-HA
December 1, 2000
Donald E. Oliver and Karen E. Duncan Oliver Duncan Redmond, OR., Attorneys for Plaintiff.
Robert S. Wagner and David C. Lewis Miller Wagner, LLP Portland, OR., Attorneys for Defendant.
OPINION AND ORDER
I. Introduction.
Plaintiff, a former ward in an alternative-high-school program for at-risk teenagers, brings this action against Defendant Central Inter-Governmental Council (COIC) and two COIC program administrators, Bill Herrmann and Bonnie Long, as a result of unwanted sexual contact plaintiff had with a former program volunteer Defendant Kirk Wright. In February 1997, the COIC terminated Wright from his volunteer position with the high school's vocational training program. Nonetheless, on a night in March 1997, after school hours, plaintiff and some of her teenage friends went to Wright's personal residence for an alcohol and methamphetamine party. Plaintiff contends that during the course of the party, Wright forced her to have sex with him. Plaintiff has already obtained a default judgment against Defendant Wright based on these allegations. The issue before the court is whether Defendants COIC, Long, and Herrmann ("the COIC defendants") can be held liable for Wright's actions. For the reasons stated below, the court finds that the COIC defendants cannot be held liable. Therefore, their motion for summary judgment shall be granted.
This defendant's name is consistently spelled "Herrmann" in the briefs and depositions. Therefore, the court presumes his name is correctly spelled "Herrmann," instead of "Herman" as it is spelled in the caption of plaintiff's complaint.
Defendants Deborah Patterson and Crook County, Oregon have been dismissed from this action in accordance with a stipulation between the parties.
II. Background.
Defendant COIC is a governmental entity that provides social services to Crook, Deschutes, and Jefferson Counties. Among those services, the COIC runs an alternative high school program in Prineville, Oregon for at-risk teenagers who are not succeeding in conventional public education. The program consists of two parts, classroom education and vocational training. In February 1997 plaintiff, who was 16-years old at the time, enrolled in the alternative high school after a series of difficulties, including use of alcohol and illegal drugs, check forging, running away from home, credit-card fraud, and unauthorized use of an automobile. (Plaintiff's Undisputed Facts at ¶ 2.) Plaintiff's participation in the program was funded by the State of Oregon Department of Education.
Except where otherwise noted, the facts are undisputed.
Defendants have submitted records from Rimrock Trails Adolescent Treatment Center showing plaintiff's history of substance abuse. (Defendants' Ex. 3.) Plaintiff objects to the records on numerous grounds, including hearsay. The court finds those records are unnecessary for resolution of this motion and has not relied on them in rendering its decision.
COIC also runs an entirely separate program that provides financial support for displaced timber workers and assists them in establishing new employment in non-timber related careers. Defendant Kirk Wright was an adult male enrolled in the program. Defendant Bonnie Long acted as Wright's employment counselor. Wright expressed to Defendant Long that he had an interest in pursuing a career as a juvenile counselor or corrections officer. In order to allow Wright to gain experience in this field, Defendant Long arranged to have Wright volunteer in COIC's alternative high-school program. The State of Oregon Department of Human Resources Volunteer Services Division performed a background check on Wright and told the COIC that it was clear. As a volunteer, Wright accompanied COIC crew leader Defendant Bill Herrmann when Defendant Herrmann took small groups of students into the field for their work-experience projects. These projects consisted of working on hiking trails at Smith Rock Park, planting poles in campgrounds, and building fences. (Wright Depo. at 33.) In her deposition, plaintiff testified that the group would sometimes split in two, and Defendant Herrmann would watch one half of the group, while Wright would watch the other half. (Plaintiff's Depo. at 87-89.) Plaintiff admitted in her deposition that she had no sexual contact with Wright while he was a volunteer in the program. (Id. at 90-91.) Although plaintiff testified that while Wright was a volunteer he made inappropriate comments to some female students, no one complained to Defendant Herrmann. (Plaintiff's Depo. at 89.) She acknowledges that if she or another student had complained, she is "sure" Defendant Herrmann would have done something about it. (Id.)
Unbeknownst to the COIC, Wright did have two prior convictions, one for driving under the influence and one for contempt of court. The State of Oregon did not inform COIC of these convictions. The State of Oregon has not been named as a defendant in this case.
Defendants claim that Wright never acted as a group leader or supervised students; however, on this summary judgment motion, the facts must be construed in the light most favorable to plaintiff.
On February 20, 1997, an administrator at the COIC received a call from a parent of a student reporting that she had heard Wright was abusing drugs and alcohol and may have offered to provide them to a female student. The next day, the COIC confronted Wright with the allegation, and Wright denied it. Nevertheless, the COIC summarily terminated Wright from his position as a work-education volunteer at the alternative-high school. The COIC claims that it did not have the power to terminate Wright from the separate displaced-timber-workers assistance program. Therefore, it put Wright to work thinning trees in Southwest Oregon, in the Crescent Chemult area, and Wright received monetary assistance for his work. (Id. at 41-43.) Wright's work with as a timber thinner had no involvement with any students, and in fact, it took him several hours to drive from his residence in Prineville out to the thinning site which was past Bend, Oregon. (Id. at 42.) Wright returned back to his residence in Prineville on nights and weekends. (Id.)
That student was someone other than plaintiff.
While plaintiff was a student at COIC, Wright invited plaintiff and two of her friends to his house for a party at which they all consumed alcohol and methamphetamine. (Plaintiff's Depo. at 98-101.) The party took place during non-school hours, and plaintiff went to the house voluntarily and consumed the drugs and alcohol voluntarily. (Id.) Plaintiff had no sexual contact with Wright on that occasion. Plaintiff acknowledges that her conduct in going to Wright's personal residence violated COIC policies and that had the COIC defendants known that Wright was hosting drug parties for students at his house he would have been terminated immediately. (Plaintiff's Depo. at 95.)
In March 1997, after Wright had been terminated from his volunteer position with the alternative-high-school program, Wright invited plaintiff and her friends to his house for a second time. (Plaintiff's Depo. at 100-01 and 119; see also Wright Depo. at 49.) Once again, Wright, plaintiff, and plaintiff's friends all consumed alcohol and methamphetamine. (Plaintiff's Depo. at 101.) During that evening, Wright asked plaintiff to go with him to pick up more drugs. Instead, Wright drove to an isolated area and asked plaintiff for oral sex. Plaintiff contends that she refused, but Wright forced her to perform oral sex and then forced her to engage in sexual intercourse. Plaintiff and Wright returned to Wright's residence, and plaintiff had sexual intercourse with Wright in his shower. Wright also photographed plaintiff performing oral sex. (Id. at 101-09.) Some weeks after this incident, plaintiff and some of her friends rode with Wright in his car in an effort to obtain more drugs. No sexual contact occurred on that occasion. Rather, Wright's sexual contact with plaintiff was limited to a single night in March 1997.
Defendants contend that the sexual contact was consensual, pointing out, for example, that plaintiff's friends were all present in the house but she did nothing to alert them of Wright's actions. For purposes of this summary judgment motion, however, the court assumes that plaintiff's sexual contact with Wright was non-consensual.
Plaintiff concedes that she never told anyone at COIC that Wright was hosting the parties or that Wright had had sexual contact with her. In addition, she concedes Wright had been terminated from the school program at the time he forced her to have sex with him.
III. Standard for Summary Judgment.
Federal Rule of Civil Procedure 56(c) mandates entry of summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." The purpose of a motion for summary judgment is to determine whether a "genuine issue of material fact" exists. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510(1986). A "material fact" is a fact "that might affect the outcome of the suit under the governing law." Id. A "genuine issue" regarding a material fact exists "if the evidence is such that a reasonable jury could return a verdict for a nonmoving party." Id.
Summary judgment is properly granted when, viewing the facts and reasonable inferences in the light most favorable to the nonmoving party, it is clear no genuine issue of material fact remains and the case may be decided as a matter of law. Greeno v. Little Blue Valley Sewer Dist., 995 F.2d 861, 863 (8th Cir. 1993); Rose v. Wells Fargo Co., 902 F.2d 1417, 1420 (9th Cir. 1990); Palmer v. United States, 794 F.2d 534, 536 (9th Cir. 1986). If the moving party meets the initial burden of establishing the nonexistence of a genuine issue, the burden then shifts to the nonmoving party to produce evidence of the existence of a genuine issue for trial:
[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial. The moving party is "entitled to judgment as a matter of law" because the non-moving party has failed to make a sufficient showing on an essential element of [its] case with respect to which [it] has the burden of proof.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552 (1986).
IV. Discussion.
Plaintiff has alleged claims against the COIC defendants predicated upon three federal statutory bases: (a) Title IX; (b) 42 U.S.C. § 1983; and (c) Title VII. Defendants have moved for summary judgment on each claim.
The court has already dismissed, sua sponte, a fourth claim brought by plaintiff under the Violence Against Women Act.
A. Title IX.
First, in her complaint, plaintiff alleged a cause of action based on Title IX. Title IX provides, in pertinent part,
No 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). The Supreme Court has held that a victim of sexual harassment can maintain a private action for monetary damages against a recipient of federal funds who fails to comply with Title IX. Davis v. Monroe County Bd. of Educ., 119 S.Ct. 1661, 1670 (1999); Gebster v. Lago Vista Independent School Dist., 118 S.Ct. 1989, 1994 (1998). However, in order for liability to exist under Title IX, the recipient must have had "actual knowledge" of the sexual harassment and must have acted with "deliberate indifference" in response to that knowledge. Gebster, 118 S.Ct. at 1999-2000. Plaintiff concedes that the defendants had no knowledge of Wright's conduct towards her and that she cannot meet the deliberate-indifference standard. Therefore, her Title IX claim is dismissed with prejudice.
B. Section 1983.
Plaintiff also alleges an action against the COIC defendants pursuant to 42 U.S.C. § 1983, under the theory that Wright's sexual abuse violated her civil rights. However, "[u]nder section 1983, supervisory officials are not liable for subordinates on any theory of vicarious liability." Hansen v. Black, 885 F.2d 642, 644 (9th Cir. 1989). Instead, plaintiff must show that the COIC defendants were "aware of a specific risk of harm to the plaintiff." Oona R.S. by Kate S. v. McCaffrey, 143 F.3d 473, 477 (9th Cir. 1998). Furthermore, the Supreme Court in Davis and Gebster strongly suggested that a plaintiff must show deliberate indifference on the part of the officials in order to establish a claim against a supervisor under § 1983. Davis, 119 S.Ct. at 1671; Gebster, 118 S.Ct. at 1999. In her response to defendant's motion to dismiss, plaintiff "concedes that defendant COIC had no actual notice of defendant Kirk Wright's severe misconduct with plaintiff and therefore could not have been `deliberately indifferent' to such conduct." (Plaintiff's Response at 4.) Plaintiff never told the COIC defendants about Wright's conduct, including either the parties Wright hosted at his house or his sexual advances toward her. In addition, she does not point to any facts suggesting that defendants were aware that Wright posed a "specific risk of harm" to her. McCaffrey, 143 F.3d at 477.
In order to avoid dismissal plaintiff argues that the Job Training Partnership Act ("JTPA") creates an underlying statutory basis for her § 1983 claim; however, she offers no analysis how the JTPA alters the standard for assessing the alleged violation of her constitutional rights. The Sixth Circuit has held there is no private right of action under the JTPA. American Federation of State, County, and Municipal Employees Local 506 v. Private Industry Council of Trumbull County, 942 F.2d 376, 379-80 (6th Cir. 1991). Additionally, the JTPA's predecessor, the Comprehensive Employment and Training Act ("CETA") was held not to give rise to a § 1983 claim. Davis v. Mobile Consortium of CETA, 857 F.2d 737, 739-41 (11th Cir. 1988); Uniformed Firefighters Assn. v. City of New York, 676 F.2d 20, 22-23 (2nd Cir. 1983). Defendants also note that plaintiff was not even a JTPA participant, and COIC received no JTPA funding for plaintiff. As a result, the court concludes that the JTPA does not alter the standard for supervisor liability under § 1983. Because plaintiff cannot prove that the COIC defendants were aware of any specific risk of harm to plaintiff, the defendants are entitled to summary judgment as a matter of law, and plaintiff's § 1983 claim is dismissed with prejudice.
C. Title VII.
Finally, plaintiff alleges a Title VII claim against defendants. As an initial matter, defendants contend that the Title VII does not apply because plaintiff was a student, not an employee. Title VII defines an employee as "an individual employed by an employer." 42 U.S.C. § 2000e(f). Plaintiff argues that she was participating in a publicly funded job training program and thus falls within the purview of Title VII. Her argument does contain some support in the language of Title VII. The statute provides,
It shall be an unlawful employment practice for any employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs, to discriminate against any individual because of his race, color, religion, sex, or national origin in admission to, or employment in, any program established to provide apprenticeship or other training.42 U.S.C. § 2000e-2(d) (emphasis added). Plaintiff asserts that COIC was an "employer" employing more than 15 workers and that she was enrolled in a training program. Therefore, according to plaintiff, she is covered by Title VII.
At oral argument, plaintiff also relied on Lourim v. Swensen, 328 Or. 380, 977 P.2d 1157 (1999). That case involved the vicarious liability of an organization under Oregon tort law for sexual abuse of the plaintiff by a volunteer of the organization. Lourim did not involve statutory construction of the definition of an "employee" under Title VII. Moreover, the perpetrator of the abuse had not been terminated from the program at the time of the abuse. Thus, Lourim is of little value in deciding the present case.
Defendants counter that plaintiff was merely a student engaged in vocational training as part of her education. They note that Title IX specifically covers "vocational education," 20 U.S.C. § 1687, providing a strong inference that Congress did not intend to provide students a cause of action under Title VII as well. Furthermore, other circuits have held that the plaintiff must receive "direct or indirect remuneration" in order to qualify as an employee under Title VII. Pietras v. Board of Fire Commiss. of Farmingville, 180 F.3d 468, 473 (2nd Cir. 1999). Clearly, plaintiff was not paid for her vocational training. Nonetheless, in Baker v. McNeil Island Corrections Center, 859 F.2d 124, 127-29 (9th Cir. 1988), the Ninth Circuit held that prisoners engaged in rehabilitative work are covered by Title VII. In part, the court relied upon the above-quoted provision, noting that "other training or retraining, including on-the-job training programs" qualified as employment. Id. at 128 (quoting 42 U.S.C. § 2000e-2(d)). Because the Ninth Circuit has found that inmates in rehabilitative training programs are protected by Title VII, it is possible that the court of appeals would also find that students in vocational training programs such that offered by COIC are also protected by Title VII. This court need not decide the issue, however, because even assuming plaintiff is covered by Title VII, she cannot prove liability against the COIC defendants.
First, as to Defendants Long and Herrmann, "civil liability for employment discrimination does not extend to individual agents of the employer who committed the violations, even if that agent is a supervisory employee." Pink v. Modoc Indian Health Project, Inc., 157 F.3d 1185, 1188 (9th Cir. 1998); see also Miller v. Maxwell's International, Inc., 991 F.2d 583, 586 (9th Cir. 1993) (Title VII and the ADEA do not impose liability on individual defendants). Thus, at a minimum, plaintiff's Title VII claim must be dismissed with prejudice as against the individual defendants, Long and Herrmann.
Second, plaintiff's Title VII claim also fails as against Defendant COIC. In order to assess this claim, it is necessary to determine whether Wright was a supervisor or a co-worker of plaintiff at the time he abused her. Although plaintiff contends that Wright was one of her supervisors while he volunteered with the alternative-high-school program, Wright had been terminated from the program in February 1997. The COIC terminated Wright for the very reason that it no longer wanted him to have contact of any kind with the students. When Wright sexually abused plaintiff, he clearly was no longer plaintiff's supervisor. He was a tree-thinner in an entirely separate displaced-timber-worker assistance program and had no contact with plaintiff or other any student in a COIC capacity. At most, Wright could be considered a co-worker of plaintiff. When harassment dervies from a co-worker, "an employer can be liable in a hostile work environment case only for what management-level employees `knew or should have known.'" Burrell v. Star Nursery, Inc., 170 F.3d 951, 955 (9th Cir. 1991). Plaintiff admits she and her friends never told the COIC that they were going to Wright's house for illegal drug and alcohol parties. In fact, the COIC did not even know of Wright's sexual abuse of plaintiff until long after it occurred. In addition, plaintiff points to no other facts suggesting that the COIC knew or should have known Wright was in a position to abuse plaintiff after he had been terminated from the program. Thus, as a matter of law, plaintiff cannot establish liability against the COIC for permitting co-worker harassment.
Plaintiff argues that when the COIC learned that Wright may have offered drugs to another teenager, it was obligated to report Wright to law-enforcement officials pursuant to ORS 419B.010(1), but failed to do so. She speculates that her abuse could have been avoided if the COIC would have reported Wright and Wright would have been prosecuted.
First, the telephone call that the COIC received about Wright had no relation whatsoever to plaintiff and did not involve allegations of sexual misconduct. Thus, although it can be argued that the COIC was remiss in failing to contact law enforcement when it heard a rumor that Wright might have offered drugs to a different teenager, plaintiff has still failed to prove that the COIC "knew or should have known" Wright posed a danger of sexual harassment to plaintiff, especially after the COIC had removed Wright from the alternative-high-school program.
Second, when law enforcement actually did investigate Wright for drug crimes, plaintiff denied going to his house for parties or having sexual contact with him. It was only after a search of Wright's house was conducted several months later that evidence of plaintiff's sexual contact with Wright came to light. Thus, plaintiff impeded the law enforcement investigation, and considering her conduct, it highly speculative that events would have turned out differently if an investigation had been conducted pursuant to a report by the COIC.
Even if Wright can somehow be labeled a supervisor of plaintiff despite his termination from the program, plaintiff cannot prevail. An employee is not vicariously liable for a supervisor's misconduct if "the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior" and "the plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise[.]" Burlington Indus. v. Ellerth, 118 S.Ct. 2257, 2270 (1998). Here, the COIC terminated Wright from the program and removed him from having any contact with the students; yet plaintiff voluntarily went to Wright's personal residence at night for at least two methamphetamine parties. Plaintiff put herself in harm's way, not the COIC. Under these circumstances, no reasonable juror could find the COIC vicariously liable for Wright's conduct, even if he could somehow be classified as plaintiff's supervisor when he no longer had any contact with her through the COIC. See Montergo v. Agco Corp., 192 F.3d 856, 859 (9th Cir. 1999) (upholding grant of summary judgment against a Title VII plaintiff who unreasonably failed to take advantage of her employer's preventative and corrective measures).
Although plaintiff testified that while Wright was a volunteer he made inappropriate comments to some female students, no one complained to Defendant Herrmann. (Plaintiff's Depo. at 89.) She acknowledges that if they would had complained, Defendant Herrmann would have done something about it. (Id.)
Third, a Title VII hostile work environment claim requires the victim to allege that the harassment "alter[ed] the terms of the victim's employment and creat[ed] an abusive working environment." Id. at 859. Because Wright was not involved with plaintiff's school program at the time of the harassment, she cannot show "the terms of [her] employment" were altered by Wright's unwanted sexual conduct or that his conduct created "an abusive working environment." Instead, the facts are undisputed that at the time of the sexual assault, Wright had no contact with plaintiff at the school. Thus, she cannot maintain a hostile work environment claim against the COIC because Wright's abuse did not alter plaintiff's "working environment." See id. (upholding a grant of summary judgment for the defendant where the plaintiff quit months after harassment had ceased and therefore her termination had nothing to do with her working environment.)
Finally, plaintiff cannot prove that Wright's conduct involved quid pro quo discrimination. "To establish a prima facie case of quid pro quo sexual harassment, a complainant must show that an individual `explicitly or implicitly' conditioned a job, job benefit, or the absence of a job detriment, upon an employee's acceptance of sexual conduct." Heyne v. Caruso, 69 F.3d 1475, 1478 (9th Cir. 1995) (internal citations omitted). As noted above, at the time of Wright's conduct, he had no relation whatsoever to plaintiff's "employment" at the COIC. Thus, a quid pro quo claim fails as a matter of law.
V. Conclusion.
Although Defendant Wright's conduct, as alleged by plaintiff, was clearly reprehensible, Defendants COIC, Long, and Herrmann had no knowledge that Wright posed a danger to plaintiff. Wright's conduct occurred after school hours, when plaintiff went to Wright's personal residence for an illegal methamphetamine party, after the COIC had terminated Wright from the school program so that he would no longer have contact with students. Under these circumstances, there is no basis for holding Defendants COIC, Long, or Herrmann liable for Wright's actions. Therefore, the defendants' motion for summary judgment, (doc. 56), is granted. Plaintiff is given until December 29, 2000 to submit a prima facie case for damages relating to her default judgment against Defendant Wright.
IT IS SO ORDERED.