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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE __________________________________________ TAMMY HURD, : : Plaintiff, : : v. : : DELAWARE STATE UNIVERSITY and : C.A. No. 07-117 DANDESON PANDA, individually and in his : official capacity, : : Defendants. : __________________________________________:

REPLY BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT BY DEFENDANT DELAWARE STATE UNIVERSITY

Respectfully submitted by: WHITE AND WILLIAMS LLP MARC S. CASARINO (#3613) JENNIFER HURVITZ BURBINE(#4416) 824 N. Market Street, Suite 902 Wilmington, DE 19801 Telephone: 302-467-4520 Facsimile: 302-467-4550 Attorneys for Defendant Delaware State University Dated: July 3, 2008

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TABLE OF CONTENTS TABLE OF AUTHORITIES..................................................................................................... ii, iii ARGUMENTS ................................................................................................................................1 I. STANDARD OF REVIEW..............................................................................................1 II. PLAINTIFF CONCEDES THAT HER § 1983 CLAIM AGAINST DSU MUST BE DISMISSED ........................................................................................................................2 III. PLAINTIFF HAS FAILED TO STATE A CLAIM AGAINST DSU PURSUANT TO TITLE IX.................................................................................................................2 A. Plaintiff Failed To Demonstrate (i) An Actionable Hostile Environment Existed Prior to January 3, 2005, (ii) DSU Had Actual Notice Of Any Such Hostile Environment, or (iii) DSU Acted With Deliberate Indifference To Sexual Harassment By Dr. Panda Of Which DSU Was Actually Aware ................................3 B. Plaintiff's Reference To "After-The-Fact" Knowledge And Hearsay Statements Should Not Be Considered On Summary Judgment ....................................................8 C. DSU Reasonably Responded And Was Not Deliberately Indifferent ...................12 1. DSU Acted Promptly and Appropriately To Plaintiff's Allegations Regarding Post-January 3, 2005 Conduct Once Such Conduct Was Brought To DSU's Attention...............................................................................................14 IV. PLAINTIFF HAS FAILED TO STATE A CLAIM AGAINST DSU PURSUANT TO TITLE VI...............................................................................................................15 V. PLAINTIFF HAS FAILED TO STATE A CLAIM WARRANTING IMPOSITION OF PUNITIVE DAMAGES ..........................................................................................16 CONCLUSION..............................................................................................................................17

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TABLE OF AUTHORITIES CASES Adams v. Andrews, 1999 WL. 544727 (S.D.N.Y. July 27, 1999) ................................2, 16 Alegria v. State of Texas, 2007 WL. 3256586 (S.D.Tex. Nov. 2, 1997) ..........................13 Alexander v. Sandoval, 532 U.S. 275, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001) .............15 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).............................................................................................................................1 Aoutif v. City Univ. of New York, 2005 WL. 3334277 (E.D.N.Y. Dec. 8, 2005) .......2, 16 Babiker v. Ross Univ. Sch. of Med., 2000 WL. 666342 (S.D.N.Y. May 19, 2000)1, 15, 16 Black v. Zaring, 104 F.3d 822 (6th Cir. 1997) .....................................................................5 Doe v. Dallas Indep. Sch. Dist., 220 F.3d 380, (5th Cir. 2000)..........................................13 Frederick v. Simpson College, 149 F. Supp. 2d 826 (S.D. Iowa 2001) ............................13 Gallant v. Board of Trustees of California State Univ., 997 F. Supp. 1231 (N.D.Cal. 1998) ..............................................................................................................................7 Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 118 S. Ct. 1989, 141 L. Ed. 2d 277 (1998)......................................................................................................................2 Hackman v. Valley Fair, 932 F.2d 239, 241 (3rd Cir. 1991)................................................4 Harris v. Forklift Systems, Inc., 510 U.S. 17, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) ..5, 6 Horowitz v. Federal Kemper Life Assurance Co., 57 F.3d 300 (3rd Cir. 1995) .................1 Johnson v. Galen Health Institutes, Inc., 267 F. Supp. 2d 679 (W.D.Ky 2003)....5, 6, 7, 14 Klemenic v. Ohio State Univ., 10 F. Supp. 2d 911 (S.D.Ohio 1998)..................................7 Langadinos v. Appalachian Sch. of Law, 2005 WL. 2333460 (W.D.Va. Sept. 25, 2005)15 Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986)...........................................................................................1 Nichols v. Bennett Detective & Protective Agency, Inc., 2006 WL. 1530223 (D. Del. May 31, 2006)..........................................................................................................1, 11

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Petruzzi's IGA Supermarkets, Inc. v. Darling-Delaware Co., 998 F.2d 1224 (3rd Cir. 1993) ..............................................................................................................................1 Philbin v. Trans Union Corp., 101 F.3d 957, 961 (3rd Cir. 1996) ................................1, 11 Porto v. Town of Tewksbury, 488 F.3d 67 (1st Cir. 2007) ...............................................14 Pryor v. Nat'l Collegiate Athletic Ass'n, 228 F.3d 548 (3rd Cir. 2002) ............................15 Tripp v. Long Island Univ., 48 F. Supp. 2d 220 (E.D.N.Y. 1999) ................................1, 16 Wills v. Brown University, 184 F.3d 20 (1st Cir. 1999) ...................................................12 Yatzus v. Appoquinimink School District, 458 F. Supp. 2d 235 (D. Del. 2006) ............1, 4 Yusuf v. Vassar College, 35 F.3d 709, 713 (2d Cir. 1994) ..........................................2, 16 STATUTES Fed.R.Civ.P. 56(c) ...............................................................................................................1

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ARGUMENTS1 I. Standard Of Review.

Summary judgment should be granted if the court concludes 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.2 The moving party bears the burden of proving that no genuine issue of material fact is in dispute.3 However, once the moving party has carried its initial burden, the nonmoving party "must come forward with `specific facts showing that there is a genuine issue for trial'."4 Only "facts that could alter the outcome are `material,' and disputes are `genuine' only if evidence exists from which a rational person could conclude that the position of the person with the burden of proof on the disputed issue is correct."5 The mere existence of some evidence in support of the nonmoving party will not be sufficient for denial of a motion for summary judgment; there must be enough evidence to enable a jury reasonably to find for the nonmoving party on that factual issue.6 In other words, the nonmoving party must do more than create some metaphysical doubt by simply restating her allegations from the pleadings.7 Moreover, the nonmoving party may not pass off a sham affidavit as creating a fact dispute where the contents of the affidavit are not genuine.8 Nor should the nonmoving party's mere speculation and conjecture or inadmissible hearsay statements be considered on a motion for summary judgment.9 Having offered nothing beyond speculation,

Initially capitalized terms shall have the meanings ascribed to them in DSU's Opening Brief unless otherwise defined herein. 2 Fed.R.Civ.P. 56(c). 3 See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 n.10, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). 4 Id. at 587 (quoting Fed.R.Civ.P. 56(e)). 5 Horowitz v. Federal Kemper Life Assurance Co., 57 F.3d 300, 302 n.1 (3rd Cir. 1995) (citations omitted). 6 See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). 7 Petruzzi's IGA Supermarkets, Inc. v. Darling-Delaware Co., 998 F.2d 1224, 1230 (3rd Cir. 1993). 8 Yatzus v. Appoquinimink School District, 458 F.Supp.2d 235, 247 (D. Del. 2006). 9 Nichols v. Bennett Detective & Protective Agency, Inc., 2006 WL 1530223, at *6 (D. Del. May 31, 2006) (attached as Exhibit 1) (citing Philbin v. Trans Union Corp., 101 F.3d 957, 961 (3rd Cir. 1996) ("the hearsay statement is not capable of being admissible at trial, and could not be considered on a motion for summary judgment") (internal citations and quotation marks omitted)); Tripp v. Long Island Univ., 48 F.Supp.2d 220, 223 (E.D.N.Y. 1999) (dismissing student's Title VI claim against university because it was based on nothing more than conclusory allegations of racial animus) (citation omitted); Babiker v. Ross Univ. Sch. of Med., 2000 WL 666342 at *4-5 (S.D.N.Y. May 19, 2000) (attached at App. A166 to A175)

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conclusory allegations, hearsay and misstated facts, Plaintiff has failed to rebut DSU's motion for summary judgment and the Complaint must be dismissed as to DSU. II. Plaintiff Concedes That Her § 1983 Claim Against DSU Must Be Dismissed.

Plaintiff does not dispute that her § 1983 claim against DSU fails as a matter of law and must be dismissed because it is barred by the Eleventh Amendment and/or because it is subsumed by Title IX. Accordingly, summary judgment on Plaintiff's § 1983 claim against DSU should be entered. III. Plaintiff Has Failed To State A Claim Against DSU Pursuant To Title IX.

Plaintiff concedes that she was not subjected to quid pro quo harassment. Instead, Plaintiff makes the conclusory argument that she was subjected to hostile environment sexual harassment. Plaintiff's hostile environment sexual harassment argument misses the mark in two significant ways. First, even when considered in a light most favorable to Plaintiff, the record simply does not demonstrate a hostile environment of sexual harassment. Second, for Title IX liability to attach to DSU, Plaintiff must demonstrate that DSU had actual notice of the hostile environment and acted with deliberate indifference to Plaintiff's complaints about the hostile environment.10 As to this latter point, Plaintiff's efforts to demonstrate that DSU had actual notice of a hostile environment fail. Plaintiff relies on sheer speculation, conclusory allegations and hearsay to suggest that DSU was aware of prior sexual harassment allegations against Dr. Panda. The Court cannot consider such information on summary judgment. Plaintiff also creates a false sense of DSU's knowledge by confusing the chronology of events in this matter. Finally, Plaintiff simply embellishes matters and ignores portions of the record that contradict her claims.

(holding that hearsay, conclusory allegations are insufficient, as a matter of law, to give rise to an inference of discrimination) (citing Yusuf v. Vassar College, 35 F.3d 709, 713 (2d Cir. 1994) ("A plaintiff alleging . . . discrimination by a university must do more than recite conclusory allegations."); Adams v. Andrews, 1999 WL 544727, *2 (S.D.N.Y. July 27, 1999) ("Conclusory allegations do not a cause of action make [under Title VI].") (attached at App. A189 to A191). See also, Aoutif v. City Univ. of New York, 2005 WL 3334277, *4 (E.D.N.Y. Dec. 8, 2005) ("conclusory, isolated, and unspecified statements cannot provide a rational basis for inferring discriminatory intent or motivation, and a claim based on such allegations cannot survive a motion to dismiss.") (citation omitted) (attached at App. A192 to A195).
10

Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998).

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A.

Plaintiff Failed To Demonstrate (i) An Actionable Hostile Environment Existed Prior To January 3, 2005, (ii) DSU Had Actual Notice Of Any Such Hostile Environment, or (iii) DSU Acted With Deliberate Indifference To Sexual Harassment By Dr. Panda Of Which DSU Was Actually Aware

The chronology of events is particularly important in this matter as Plaintiff must prove that (i) a hostile environment of sexual harassment existed prior to her January 3, 2005 meeting with Mark Farley, (ii) DSU had actual notice of, and acted with deliberate indifference to, such pre-January 3rd hostile environment, (iii) the hostile environment continued after the January 3rd meeting, and (iv) DSU had actual notice of, and acted with deliberate indifference to, such post-January 3rd hostile environment. Plaintiff embellishes or simply makes up "facts" in an effort to create the appearance of a hostile environment of sexual harassment prior to January 3, 2005. Plaintiff claims in her responsive brief that from September, 2004 through December, 2004, Dr. Panda "continually (over and over again)" inquired whether Plaintiff and her former boyfriend, Derek Batton, were a couple. First, DSU contends that even if Dr. Panda asked two students if they were a couple, such inquiry does not amount to sexual harassment. It certainly does not rise to a sufficiently offensive level to constitute a hostile environment. This is especially true given that Plaintiff and Mr. Batton were in fact dating, a fact Plaintiff conveniently ignores in her responsive brief. Nevertheless, Plaintiff's claim in her responsive brief and sham affidavit that Dr. Panda repeatedly asked her and Mr. Batton if they were a couple during the Fall, 2004 semester are directly contradicted by her previously sworn testimony in this matter. At her April 3, 2008 deposition, Plaintiff was specifically asked to identify all remarks made to her by Dr. Panda that she considered sexually harassing.11 Plaintiff testified that the first such comment was Dr. Panda asking if Plaintiff received a "booty call" when she listened to a voice message on her cell phone sometime in September, 2004 near the beginning of the Fall, 2004 semester.12 Plaintiff further testified that another

11

Plaintiff Dep. p. 15 ln 20 to p. 26 ln 1 at Plaintiff's Appendix to Responsive Brief at B5-B8 (hereinafter referred to as "Plaintiff's App."). 12 Plaintiff Dep. p. 15 ln 20 to p. 16 ln 1 at Plaintiff's App. B5. See also Chronology at App. A5.

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allegedly sexually harassing comment by Dr. Panda was not made to Plaintiff, for another four months, until December, 2004 near the end of the Fall, 2004 semester.13 Contrary to her responsive brief and sham affidavit, Plaintiff testified at her deposition to recalling two (2) other incidents where Dr. Panda asked if Plaintiff and Mr. Batton were "on a date" or "a couple" or something to that effect as Dr. Panda passed by them on campus.14 Plaintiff recalled only those two incidents of Dr. Panda commenting about Plaintiff and Mr. Batton being a couple, which is hardly equivalent to being asked "continually (over and over again)" as Plaintiff now alleges. Moreover, Plaintiff clearly testified that she has no idea whether Dr. Panda commented about Plaintiff and Mr. Batton being a couple during the Fall, 2004 semester.15 It is only when faced with summary judgment that Plaintiff developed a miraculous recall of her memory as demonstrated by her sham affidavit. On summary judgment, "when, without a satisfactory explanation, a nonmovant's affidavit contradicts earlier deposition testimony, the district court may disregard the affidavit in determining whether a genuine issue of material fact exists."16 To determine if an affidavit submitted in opposition to summary judgment is a sham affidavit, the court should consider whether: (1) the affiant was cross-examined during earlier testimony; (2) the affiant had access to the relevant evidence at the time of the earlier testimony; (3) the affidavit was predicated on newly discovered evidence; and (4) the earlier testimony reflects confusion which the affiant attempts to explain.17 Applying these factors to the present case demonstrates that Plaintiff's affidavit is a sham affidavit unworthy of consideration on summary judgment. Plaintiff was subjected to examination at deposition by her own counsel and defendants' counsel. There was no apparent confusion or misunderstanding by Plaintiff with respect to the questions posed to her during the deposition.
13 14

Plaintiff Dep. p. 24 ln 21 to p. 25 ln 17 at Plaintiff's App. B7. See also Chronology at App. A5-A6. Plaintiff's Dep. p. 20 ln 6 to p. 24 ln 3 at Plaintiff's App. B6-B7. 15 Plaintiff's Dep. p. 20 ln 10-19 at Plaintiff's App. B6. 16 Yatzus, 458 F.Supp.2d at 247 (quoting Hackman v. Valley Fair, 932 F.2d 239, 241 (3rd Cir. 1991)). 17 Yatzus at 247 (citations omitted).

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Plaintiff possessed all necessary information to fully respond to questions during her deposition. Thus, Plaintiff's affidavit in opposition to summary judgment is merely a litigation tactic designed to concoct a factual dispute where none exists. More specifically, realizing that the September, 2004 and December, 2004 alleged comments by Dr. Panda are too infrequent and lacking in severity to constitute a hostile environment of sexual harassment, Plaintiff embellished the "facts" through her affidavit to suggest that there were numerous other incidents occurring in the Fall, 2004 semester to create a sexually hostile environment. The Court should not consider such made-up "facts" on summary judgment and Plaintiff's affidavit should be stricken from the record as a sham affidavit. Thus, the true record the Court is faced with on summary judgment is that Dr. Panda allegedly asked Plaintiff if she received a "booty call" in September, 2004 and allegedly engaged in a banter with Plaintiff in December, 2004 where Plaintiff joked about Dr. Panda getting in line with other guys to have a relationship with Plaintiff. Prior to January 3, 2005, Plaintiff never reported the September, 2004 incident to anyone, including never having reported it to DSU.18 Plaintiff claims to have "laughed off" the December, 2004 repartee.19 Even if accepted as true, these isolated sporadic incidents do not establish a hostile educational environment. To establish a prima facie case for hostile environment under Title IX, Plaintiff "must produce evidence that her educational experience was permeated with discriminatory intimidation, ridicule and insult that was sufficiently severe or pervasive to alter the conditions of her education and create a sexually hostile environment."20 "The conduct complained of is judged both objectively and subjectively; it must be sufficiently severe or pervasive to create an environment that a reasonable person would find hostile."21 In determining whether Plaintiff has established that the educational environment at DSU was hostile or abusive, the Court must consider (1) the conduct's severity; (2) the
18 19

Plaintiff Dep p.17 ln 22 to p.18 ln 7 at App. A11 to A12. Chronology at App. A5 to A9 . 20 Johnson v. Galen Health Institutes, Inc., 267 F.Supp.2d 679, 685 (W.D.Ky 2003) (quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)). 21 Johnson, 267 F.Supp.2d at 685 (citing Black v. Zaring, 104 F.3d 822 (6th Cir. 1997)).

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frequency of the abusive conduct; (3) whether it is physically threatening or humiliating rather than merely offensive; and (4) whether it unreasonably interfered with Plaintiff's performance.22 Applying these factors to the matter at hand demonstrates that Dr. Panda's isolated and sporadic comments during the Fall, 2004 semester, even if accepted as true, did not create a hostile environment of sexual harassment prior to January 3, 2005. First, both comments were made only to Plaintiff and, according to her, no one else in the class knew about them. Thus, there is no issue of Plaintiff feeling humiliated or otherwise demeaned before her classmates. The "booty call" comment apparently did not trouble Plaintiff enough to cause her to report it to anyone. Plaintiff did not miss any classes nor did her performance suffer as a result of either comment by Dr. Panda. In fact, Plaintiff could not wait to get started on work for future classes she wanted to take with Dr. Panda. On January 4, 2005, Plaintiff sent Dr. Panda an email stating: Happy New Year!!! I am so excited to start this new semester. I am going to see what I can do to finish up my degrees and begin teaching ASAP. I am just reminding you that I am still in need of the syllabus for International Management and International Marketing. I want to begin my notes early so that I may be able to focus more in class instead of steady [sic] writing notes from the book. I also wanted to mention quickly that I was uncomfortable with our last conversation the last day of class regarding my dating life. I very much enjoy your class and your teaching methods, however of [sic] we could just avoid conversations such as the one we had the day of finals I would really appreciate it. I am going to finish checking up on a few things regarding the alternative program through the state of Delaware for teaching. If it looks like something that I can accomplish then I may be in need of a couple more classes of yours this semester. I will let you know by the end of the week. I may need your help in getting in because they are already booked in the system. Thank you for your time and patience.23

22 23

Johnson, 267 F.Supp.2d at 685 (citing Harris, 510 U.S. at 23). App. at A90.

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Plaintiff's January 4th email to Dr. Panda does not remotely suggest that Plaintiff was so offended or fearful of Dr. Panda that she never wanted to take another course with him. To the contrary, Plaintiff's jovial email repeatedly comments how much she enjoys Dr. Panda's classes and expresses her excitement about having additional classes with Dr. Panda. Indeed, Plaintiff herself deemed the December, 2004 banter with Dr. Panda worthy of only a quick passing reference buried among her claims of enjoying and very much looking forward to Dr. Panda's classes. Plaintiff's jovial, flattering email belies her after-the-fact suggestion that she was so troubled by Dr. Panda that she could not go on with his classes. Under these circumstances, there is no reasonable basis upon which to conclude that Plaintiff was subjected to a hostile environment of sexual harassment during the Fall 2004 semester. No reasonable person could find the stray "booty call" comment and "get in line with other guys" banter so severe as to create a sexually harassing hostile environment.24 Plaintiff herself claims to have "laughed off" the "get in line with other guys" banter and apparently did not find the "booty call" comment offensive enough to report to anyone. According to Plaintiff, there were no sexually harassing comments by Dr. Panda for the almost four months that elapsed between the September and December incidents. These isolated comments do not create a hostile environment. It is undisputed that Plaintiff neither missed classes nor did her performance suffer as a result of any conduct attributed to Dr. Panda. No one else in the classes Plaintiff took with Dr. Panda reported any misconduct by Dr. Panda.25 Thus, even considering the facts in a light most favorable to Plaintiff, it is apparent that her educational experience was not permeated with discriminatory intimidation,

This alleged harassment is akin to the level of conduct that has historically been found not to rise to the level of severe and pervasive sexual harassment. See e.g., Johnson, 267 F.Supp.2d 679 (professor's crude language during lectures, inappropriate touching of student and propositioning student for sex did not create an objectively hostile educational environment giving rise to liability under Title IX); Gallant v. Board of Trustees of California State Univ., 997 F.Supp. 1231 (N.D.Cal. 1998) (professor's graphic comments about his sexual desire for another man and a greeting kiss on student's cheek does not rise to the level of severe or pervasive sexual harassment); Klemenic v. Ohio State Univ., 10 F.Supp.2d 911 (S.D.Ohio 1998) (coach did not create a sexually hostile environment by asking the student to go out with him and sending her a sexually suggestive magazine article because the acts were not severe or pervasive). 25 Plaintiff Dep p. 44, ln 2-20 at App. A13.

24

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ridicule and insult that was sufficiently severe or pervasive to alter the conditions of her education and create a sexually hostile environment. Accordingly, because there is no hostile environment of sexual harassment, Plaintiff has failed to establish an essential element of her Title IX claim, which mandates dismissal of the claim as a matter of law. B. Plaintiff's Reference To "After-The-Fact" Knowledge And Hearsay Statements Should Not Be Considered On Summary Judgment

Plaintiff's response makes the conclusory allegation that DSU had prior knowledge that Dr. Panda was sexually harassing students. To support this allegation, Plaintiff references a complaint made against Dr. Panda in 1992 by a temporary worker and claims by other students that came to light during the investigation of Plaintiff's complaint. None of these claims demonstrate that DSU had actual knowledge of ongoing sexual harassment by Dr. Panda against Plaintiff. Moreover, the socalled evidence of these claims is nothing but speculation, conjecture and inadmissible hearsay that should not be considered on summary judgment. With respect to the 1992 temporary worker allegation, Plaintiff relies upon the deposition testimony of Germain Scott-Cheatham and Drexel Ball. Examination of their testimony evidences that neither (i) recalls the temporary worker who allegedly made the claim, (ii) actually witnessed Dr. Panda harass anyone, (iii) know the facts or circumstances surrounding DSU's investigation of the matter, or (iv) the resolution of the matter. Such unreliable testimony does not create a genuine dispute of fact. Ms. Cheatham's and Mr. Ball's testimony is nothing more than speculation about rumors. Such hearsay and hearsay-within-hearsay cannot be considered on summary judgment and should be stricken from the record in this matter. Ms. Cheatham was a secretary in Dr. Panda's department in 1992.26 She recalls a temporary worker being visibly upset and, upon asking her what was wrong, being told that Dr. Panda had made a

26

Transcript of May 16, 2008 Deposition of Germaine Scott-Cheatham p. 16 (hereinafter, "Cheatham Dep.") at Plaintiff's App. B266.

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sexual pass at the temporary worker.27 Ms. Cheatham cannot recall the name or any other information from which anyone can identify the temporary worker to verify her story.28 Dr. Panda vehemently denies that any such incident ever occurred with respect to this temporary worker.29 Ms. Cheatham told the temporary worker to report the incident.30 She cannot recall whether she walked with the temporary employee to the building that then housed DSU's human resources office because her memory of the event is so "blurry".31 She has no knowledge of what became of the matter since she never saw the temporary worker again and did not think it was necessary to follow up with anyone.32 In fact, the matter happened so long ago that Ms. Cheatham had much difficulty recalling anything specific about it.33 She has no knowledge of Dr. Panda allegedly harassing anyone beyond the unverified allegation by the temporary worker.34 Mr. Ball was DSU's affirmative action officer in 1992.35 He left employment at DSU in December, 2005.36 He originally had no recollection of the 1992 allegations by the temporary worker, but his memory was jogged when Plaintiff's counsel discussed the incident with him.37 In any event, Mr. Ball has no first-hand knowledge of the 1992 incident.38 He cannot recall the name or any other information from which anyone can identify the temporary worker and verify this story.39 He does not know if there was a written complaint made by the temporary worker.40 He cannot recall how he even
27 28

Cheatham Dep. p. 17-18 at Plaintiff's App. B266-B267. Cheatham Dep. p. 16 at Plaintiff's App. B266 and p. 21 at Plaintiff's App. B267. 29 Dr. Panda Dep. p. 83 at Plaintiff's App. B56. 30 Cheatham Dep. p. 18 at Plaintiff's App. B267. 31 Id. p. 18-19 at Plaintiff's App. B267. 32 Id. p. 23 at Plaintiff's App. 268. 33 Id. 34 Cheatham Dep. p. 25 at Plaintiff's App. 268. 35 Transcript of June 9, 2008 Deposition of Drexel Ball (hereinafter "Ball Dep.") p. 7-8 at Plaintiff's App. B225. 36 Ball Dep. p. 31 at Plaintiff's App. B231. Mr. Ball's separation from employment at DSU is subject to a confidentiality agreement entered as part of the resolution of employment-related litigation Mr. Ball brought against DSU. DSU reserves all rights under such confidentiality agreement and otherwise with respect to Mr. Ball and, specifically, all claims against Mr. Ball for violation of his agreements with DSU. 37 Ball Dep. p. 53-53 at Plaintiff's App. B236-B237. DSU maintains that ex parte communication between Plaintiff's counsel and DSU's former employee Mr. Ball is improper and reserves all rights to challenge such communications and admission of Mr. Ball's statements in this matter. 38 Ball Dep. p. 52-63 at Plaintiff's App. B236-B239. 39 Id. 40 Id.

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came to hear of this incident.41 All that he can recall is that he somehow heard an allegation about Dr. Panda, formed a committee to investigate the allegation and the temporary worker never pursued the matter.42 Mr. Ball was not part of the investigation committee and concedes that because there was no pursuit of the complaint by the temporary worker there was never an actual investigation.43 He has no idea what happened with the matter thereafter. He cannot say whether there were actually any written records of this incident.44 He has no knowledge of Dr. Panda allegedly harassing anyone beyond the unverified allegation by the temporary worker.45 The statements by Ms. Cheatham and Mr. Ball are hearsay and hearsay-within-hearsay. Neither of them are fully confident that their recollection of the events allegedly occurring way back in 1992 are even accurate. Neither of them can identify the temporary worker who allegedly made a complaint nor point to any documentation of such complaint. Ms. Cheatham's statements about what this mystery person told her back in 1992 are pure hearsay. Ms. Cheatham has no personal knowledge, or even second-hand knowledge, of whether the temporary worker told the details of her allegations to anyone at DSU. Reliance on Mr. Ball's testimony about the 1992 incident is even more problematic. He concedes having no personal knowledge of the incident. He never talked with the temporary worker, never saw a written complaint concerning the incident, and does not know if there was ever a written record of the incident. He acknowledges that there was never an investigation of the incident because the temporary worker failed to pursue the matter. Worse yet, Mr. Ball cannot even recall who he heard such hearsay statements from or otherwise verify his supposed "knowledge" of the incident.

41 42

Id. Id. Most troubling is that Mr. Ball does not even know the details of what Dr. Panda allegedly did more than 16 years ago. 43 Id. 44 Id. 45 Ball Dep. p. 77 at Plaintiff's App. B242.

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Such inadmissible hearsay statements cannot be considered on a motion for summary judgment and should be disregarded by the Court.46 Even if the Court were to consider such untrustworthy testimony, nothing said by Ms. Cheatham and Mr. Ball evidence that DSU had actual notice that Dr. Panda was sexually harassing Plaintiff, or anyone else for that matter. Both Ms. Cheatham and Mr. Ball testified that beyond the unverified allegations by the temporary worker they had not heard of Dr. Panda harassing anyone. It is ludicrous for Plaintiff to suggest that an unverified event, with no written documentation, allegedly occurring more than 12 years prior to Plaintiff's complaint, and with no reported incidents in the intervening period somehow put DSU on actual notice that Dr. Panda was sexually harassing students and, more particularly, sexually harassing Plaintiff. Perhaps recognizing this infirmity of her Title IX claim, Plaintiff makes the spectacular allegation that DSU was aware that Dr. Panda was sexually harassing other students but did nothing about it. To support this conclusory allegation, Plaintiff references statements by DSU students Wayne Holmes, Tracye R. Berry, and Talisha Murphy that Dr. Panda allegedly sexually harassed them during their time at DSU. Plaintiff implies that DSU was aware of these students' allegations prior to Plaintiff meeting with Mr. Farley on January 3, 2005. However, this ignores the reality that it was Plaintiff who identified these students to Mr. Farley only after she met with him on March 21, 2005 and suggested that Mr. Farley talk to these students. After she met with Mr. Farley on January 3, 2005, Plaintiff began talking to fellow students on campus and with whom she worked with at Dover Downs about her allegations against Dr. Panda.47 First, this directly contradicts Plaintiff's statement in her sham affidavit that Mr. Farley was the only
46

Nichols, 2006 WL 1530223, at *6 (citing Philbin, 101 F.3d at 961) ("the hearsay statement is not capable of being admissible at trial, and could not be considered on a motion for summary judgment") (internal citations and quotation marks omitted)). 47 Farley Dep. p. 14 at App. A51 and p. 42 at App. A61. See also April 20, 2005 statement from Wayne Holmes at Plaintiff's App. B320 describing Plaintiff's discussion of allegations against Dr. Panda while working with Mr. Holmes at Dover Downs. Plaintiff failed to attach the entire statement from Mr. Holmes, specifically leaving out the portion where Mr. Holmes talks about Plaintiff discussing her allegations with others. A complete version of Mr. Holmes' statement is attached hereto as Exhibit 2.

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person with whom she discussed the matter and serves as additional basis to disregard Plaintiff's sham affidavit.48 Second, the statements themselves are all dated after March 21, 2005 and are from students that Plaintiff pre-interviewed and recommended to Mr. Farley for further interview about Dr. Panda.49 It is readily apparent from the statements relied upon by Plaintiff that the complaining students did not come forward until after Plaintiff made her March 21, 2005 complaint. It is beyond cavil that DSU had no knowledge of these students' complaints until after Plaintiff's March 21, 2005 complaint. Plaintiff's reliance on these statements evidences a fundamental misunderstanding of Title IX liability. DSU can be held liable under Title IX only where it had actual knowledge of harassment and acted with deliberate indifference to such known harassment. These "after-the-fact" statements are irrelevant in the Title IX context and should be stricken from the record.50 Plaintiff has therefore failed to demonstrate an essential element of her Title IX claim. Accordingly, summary judgment on Plaintiff's Title IX claim in favor of DSU is appropriate. C. DSU Reasonably Responded And Was Not Deliberately Indifferent

Even though Plaintiff's Title IX claim must be dismissed for failure to demonstrate the requisite level of harassment and/or DSU's knowledge of a hostile environment of sexual harassment, for sake of completeness DSU will demonstrate why Plaintiff's Title IX claim also fails for lack of actual notice and because DSU's response under the circumstances was reasonable. As previously stated, there was no conduct by Dr. Panda against Plaintiff that constitutes actionable sexual harassment. Thus, it cannot be said that DSU had actual notice of that which does not exist. Gebser makes clear that DSU can only be found liable under Title IX for consciously disregarding acts of sexual harassment that are actually known. This standard necessarily requires that the acts of sexual harassment exist.
48 49

See Plaintiff's sham affidavit at ¶ 55. Farley Dep. p. 14 at App. A51. See also statements at Plaintiff's App. B320-B324. 50 Wills v. Brown University, 184 F.3d 20, 29 (1st Cir. 1999) (affirming trial court's disregard of other students' complaints as irrelevant because the university was not told of the other students' complaints until after learning of the plaintiff's Title IX claim).

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At the January 3, 2005 meeting between Plaintiff and Mr. Farley, Plaintiff reported only the December, 2004 banter she had with Dr. Panda. From Plaintiff's rendition of that banter, Mr. Farley felt that Dr. Panda may have acted unprofessionally, but not that the lone colloquy between Plaintiff and Dr. Panda constituted actionable sexual harassment. Thus, DSU disputes that Plaintiff can satisfy the essential element of actual notice to maintain her Title IX claim. In the event the Court deems Plaintiff's rendition to Mr. Farley at the January 3, 2005 meeting of the December, 2004 banter with Dr. Panda to satisfy the actual notice requirement, Plaintiff's Title IX claim still fails because DSU reasonably responded to Plaintiff's complaint based on the circumstances then known. "What constitutes appropriate remedial action for allegations of discrimination in Title IX cases depends on the particular facts of each case."51 The Court must also consider the reasonableness of the response in light of the seriousness and credibility of the complaint.52 On January 3, 2005, Mr. Farley was ready and willing to follow up on Plaintiff's complaint about the lone December, 2004 "get in line" banter. Plaintiff herself instructed, actually demanded, that Mr. Farley not divulge to anyone, especially not to Dr. Panda, that she had brought the matter to Mr. Farley's attention. Mr. Farley agreed to honor Plaintiff's request with the understanding that Plaintiff would send Dr. Panda an email advising that the December, 2004 banter was unwelcome by Plaintiff. Mr. Farley gave Plaintiff his cell phone and home phone numbers and made clear to Plaintiff that she was to immediately contact Mr. Farley if any further incidents occurred. Plaintiff sent the email to Dr. Panda as far as Mr. Farley was aware. Neither Mr. Farley nor anyone else at DSU heard any further complaints from Plaintiff until her March 21, 2005 letter to President Sessoms. Thus, by all reasonable appearances, the remedial action

51

Alegria v. State of Texas, 2007 WL 3256586, *5 (S.D.Tex. Nov. 2, 1997) (attached at App. A152 to A165) (citing Doe v. Dallas Indep. Sch. Dist., 220 F.3d 380, 384 (5th Cir. 2000), cert. denied, 531 U.S. 1073, 121 S.Ct. 766, 148 L.Ed.2d 667 (2001)). 52 Frederick v. Simpson College, 149 F.Supp.2d 826 at 839-40 (S.D. Iowa 2001)(citations omitted).

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taken by DSU, i.e., Plaintiff sending an email to Dr. Panda, served to stop the alleged harassment given that DSU heard nothing further about the matter. Whether DSU's remedial action in response to the January 3rd complaint was effective "is not one of effectiveness by hindsight."53 Under the circumstances then known, DSU reasonably responded to the January 3rd complaint and by all outward appearances such response was effective. 1. DSU Acted Promptly and Appropriately To Plaintiff's Allegations Regarding Post-January 3, 2005 Conduct Once Such Conduct Was Brought To DSU's Attention Although, Plaintiff claims that after her January 3rd meeting with Mr. Farley, Dr. Panda engaged in several other conversations with her that she deemed sexually harassing, she did not bring those incidents to DSU's attention until March 21, 2005.54 As such, Plaintiff cannot maintain a Title IX claim against DSU for any incidents between January 3rd and March 21st because of the utter failure to give notice and an opportunity to remediate. Rather than immediately notify DSU that the initial email warning was ineffective, Plaintiff began discussing her allegations against Dr. Panda with various other students, engaged a lawyer, and began building a factual basis to bring a lawsuit against DSU.55 When Plaintiff returned to make a formal complaint on March 21st, DSU investigated thoroughly, and took immediately remedial action against Dr. Panda. DSU respectfully suggests that in light of the "constellation of surrounding circumstances, expectations, and relationships" known at the time, it acted reasonably as to Plaintiff's January and March 2005 complaints. Plaintiff's Title IX claim must therefore be dismissed.56

See Porto v. Town of Tewksbury, 488 F.3d 67, 74 (1st Cir. 2007) (holding school did not act with deliberate indifference under Title IX where initial response to complaint of sexual harassment reasonably appeared to be effective). 54 This begs the obvious question, why did Plaintiff not immediately contact Mr. Farley upon the first post-January 3rd incident with Dr. Panda that Plaintiff felt was a continuation of the alleged sexual harassment? 55 Plaintiff Dep p. 100 ln 5-8 at App. A30. 56 Johnson, 267 F.Supp.2d, n.6 (whether gender oriented conduct rises to the level of actionable harassment depends on constellation of surrounding circumstances, expectations and relationships).

53

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IV.

Plaintiff Has Failed To State A Claim Against DSU Pursuant To Title VI.

To establish a claim under Title VI, Plaintiff must show: (1) DSU, as an institution, engaged in racial discrimination against Plaintiff, (2) DSU is receiving federal financial aid, and (3) Plaintiff was an entitled beneficiary of the program or activity receiving the aid.57 DSU cannot be found vicariously liable under Title VI.58 Instead, Plaintiff must prove that DSU, as an institution, intentionally discriminated against Plaintiff because of her race.59 Plaintiff curiously cites to no Title VI authority, but relies exclusively on Title VII decisions to support her Title VI claim. DSU can only surmise that Plaintiff ignores the wealth of Title VI authority because it so clearly undermines her claims against DSU. DSU further surmises that Plaintiff erroneously believes reference to the respondeat superior liability element of a Title VII claim will somehow overcome the fact that DSU cannot be held liable on a respondeat superior theory under Title VI.60 Ironically, the facts, even when considered in a light most favorable to Plaintiff, demonstrate that no one, especially not DSU, intentionally harassed or discriminated against Plaintiff on account of her race. Plaintiff concedes that no personnel from DSU, including Dr. Panda, discriminated on account of Plaintiff's race.61 Indeed, Plaintiff cannot state a lucid reason for why she filed a racial

Babiker, 2000 WL 666342 at *4 (citations omitted). See, Langadinos v. Appalachian Sch. of Law, 2005 WL 2333460, *10 (W.D.Va. Sept. 25, 2005) (attached at App. A176 to A188) (Under Title VI, educational institution is not vicariously liable for conduct of its personnel). 59 Id. (Rejecting plaintiff's claim that school's failure to enforce its nondiscrimination policies gave rise to Title VI liability because ". . . a school faces liability only when it intentionally does something wrong, not when it merely sits by and does nothing at all.") (citing Pryor v. Nat'l Collegiate Athletic Ass'n, 288 F.3d 548, 568 (3rd Cir. 2002) (rejecting theory that deliberate indifference to plaintiff's civil rights is actionable under Title VI in school setting) (citing Alexander v. Sandoval, 532 U.S. 275, 280, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001) (Holding Title VI prohibits only intentional discrimination, not discrimination by omission))). 60 See, Langadinos, 2005 WL 2333460 at *10. 61 Plaintiff Dep p. 106 ln 3-21; p. 117 ln 8-17; p. 118 ln 1-3 at App. A32 to A36.
58

57

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discrimination claim against DSU.62 The Court cannot accept Plaintiff's "naked assertions unsubstantiated by specific factual support."63 Dismissal of Plaintiff's Title VI claim against DSU is appropriate because the claim is based solely on Plaintiff's conclusory allegations of discrimination by persons other than DSU.64 Even if the Court were to assume that the incidents did occur as Plaintiff suggests, the incidents are irrelevant to a Title VI claim against DSU. It is without dispute that none of the incidents from which Plaintiff draws her conclusory allegations of racial harassment involve conduct by DSU. Accordingly, Plaintiff's Title VI claim against DSU must be dismissed because Plaintiff fails to identify any actionable conduct by DSU constituting harassment or discrimination on account of Plaintiff's race. V. Plaintiff Has Failed To State A Claim Warranting Imposition Of Punitive Damages

DSU stands on the arguments made in its Opening Brief, which demonstrate that punitive damages are not warranted in this matter.

Plaintiff Dep p. 106 ln 3-21 at App. A32. DSU leaves Plaintiff to her burden of proving a good faith basis for having brought her Title VI claim against DSU. 63 See Tripp, 48 F.Supp.2d at 223 (dismissing student's Title VI claim against university because it was based on nothing more than conclusory allegations of racial animus) (citation omitted). 64 See Babiker, 2000 WL 666342 at *4-5 (holding that hearsay, conclusory allegations are insufficient, as a matter of law, to give rise to an inference of discrimination) (citing Yusuf, 35 F.3d at 713 ("A plaintiff alleging . . . discrimination by a university must do more than recite conclusory allegations."); Adams, 1999 WL 544727 at *2 ("Conclusory allegations do not a cause of action make [under Title VI]."). See also, Aoutif, 2005 WL 3334277 at *4 ("conclusory, isolated, and unspecified statements cannot provide a rational basis for inferring discriminatory intent or motivation, and a claim based on such allegations cannot survive a motion to dismiss.") (citation omitted).

62

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CONCLUSION For the reasons and authorities set forth above and in DSU's Opening Brief, DSU is entitled to summary judgment. In the event the Court does not dismiss the entire complaint against DSU, DSU reserves all rights to challenge the admissibility of Plaintiff's evidence on the basis of, but not limited to, relevance, hearsay, speculation, conjecture, prejudice and vagueness.

Respectfully submitted by: WHITE AND WILLIAMS LLP

___________________________________ MARC S. CASARINO (#3613) JENNIFER HURVITZ BURBINE(#4416) 824 N. Market Street, Suite 902 Wilmington, DE 19801 Telephone: 302-467-4520 Facsimile: 302-467-4550 Attorneys for Defendant Delaware State University Dated: July 3, 2008

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE __________________________________________ TAMMY HURD, : : Plaintiff, : : v. : : DELAWARE STATE UNIVERSITY and : C.A. No. 07-117 DANDESON PANDA, individually and in his : official capacity, : : Defendants. : __________________________________________:

CERTIFICATE OF SERVICE I, Marc S. Casarino, do hereby certify that on this 3rd day of July, 2008, the REPLY BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT BY DEFENDANT DELAWARE STATE UNIVERSITY was served upon the following via U.S. Mail: Ronald G. Poliquin, Esquire Young, Malmberg & Howard, P.A. 30 The Green Dover, DE 19901 Richard R. Wier, Jr., Esquire Two Mill Road, Suite 200 Wilmington, DE 19806

WHITE AND WILLIAMS LLP By: /s/ Marc S. Casarino MARC S. CASARINO (#3613) 824 North Market Street, Suite 902 P. O. Box 709 Wilmington, DE 19899-0709 (302) 467-4520 Attorneys for Defendant Delaware State University

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