Court Dismisses Sexual Harassment, Retaliation Case Against Hofstra

Last month, a federal court in New York awarded summary judgment to Hofstra University, dismissing claims of sexual harassment and retaliation that had been filed by Lauren Summa, former student manager of the football team. Summa, you’ll recall from prior posts, alleged that she was sexually harassed by members of the football team on bus rides to away games and in other contexts. She also claimed that she was not rehired for the manager position or for a grad assistant position elsewhere in the university as retaliation for complaining about the incidents to the coach and others.

The court analyzed Summa’s sexual harassment claims under Title VII as well as Title IX, after concluding that as a student manager she was an employee within the meaning of the employment discrimination law. The court determined that several of the events Summa included in her description of a “hostile environment” consisted of “gender neutral” harassment -- that is, not motivated by her sex -- and thus did not qualify as sexual harassment. For instance, the court described an incident when football players holding shut the door while she was in the bus bathroom as “boorish” and “immature,” but not motivated by sex. Also, the screening of a movie with sexual themes on the team bus did not count as sexual harassment because there was no evidence that it was shown to target Summa. The fact that players responded to Summa’s complaint about the movie (which prompted the coach to turn it off) by shouting “we want boobies” and that one of them yelled at Summa to “sit down and shut … up,” while gender-motivated, did not “by itself” evidence of a severe and pervasive hostile environment.

As my employment discrimination students know well, there’s a lot of subjectivity in the “severe or pervasive” standard in sexual harassment law. Had I been the judge, I would have likely viewed Summa being physically entrapped in the bathroom of a bus full of hostile football players as not only severe, but also gender-related given that none of the men on the bus were apparently subjected to that kind of intimidation. Moreover, while the court concludes that Hofstra responded appropriately to the incidents of harassment that Summa reported (for example, the football player who yelled at Summa after the movie incident was suspended from the team by operation of the coach’s third strike policy) there is no indication that the coaching staff addressed the bus bathroom incident or the “we want boobies” chant which also would have rated with me as evidence of hostile, sexual harassment.

For a variety of reasons, the court also rejected Summa’s claims that she was retaliated against by the University for complaining about the harassment she experienced in her position as student manager. According to the court, Summa did not demonstrate that the person in charge of hiring student managers had knowledge of her complaints, a required element for any retaliation claim. The court also accepted Hofstra’s articulation of a legitimate, nondiscriminatory reason for its decision to deny her a graduate assistant position, one relating to certain misstatements on her resume, which Summa did not demonstrate to be pretext of a retaliatory motive.

Decision is: Summa v. Hofstra Univ., 2011 WL 1343058 (E.D.N.Y. Apr.7, 2011).

UNCC decides to add football

The trustees at the University of North Carolina Charlotte have decided to go forward with the plan to add a football team. The team will make its debut in 2013.
This is also a good time to mention that Hofstra University cut its team last week, shortly after Northeastern University announced it was cutting its team due to the expenses associated with the team and the inability to properly upgrade facilities.
And in the wake of these two announcements there was a fair amount of desperate "football is dying" talk.
But it seems UNCC has granted some people's holiday wishes and brought peace on earth to football-loving folks.
It will not be a cheap endeavor, however. The stadium will cost $40.5 million and the student body is slated to bear most of the financial burden with fees predicted to be raised by $320 over the course of the next few years. This number could go down, according to the Chancellor, if private donations increase. Of course, by this logic, they could also go up if donations go down. I mean they say the recession is over, but...
It was not an uncontroversial decision as you might imagine--especially because of the above-mentioned economic uncertainty. But it had many proponents as well.
The decision is not final final yet. It has to be approved by the Board of Governors in February.

Dep't of Ed Says Schools Potentially Liable for Cyber-Harassment

The Department of Education addressed for the first time whether schools could violate Title IX by failing to respond appropriately to sexual harassment on-line, according to advocacy group Security On Campus.

The agency was adjudicating charges that Hofstra University did not adequately protect a female student from sexual assault that followed a barrage of sexual harassing comments about her on a now-defunct gossip website called Juicy Campus. Though the agency did not find sufficient facts to determine that Hofstra was deliberately indifferent to the harassment the student was facing, it did emphasize that schools have the same responsibility to respond to internet harassment as it does to harassment that is spoken or posted on the physical campus.

This clarification puts universities on notice that indifference to online harassment could result in liability under Title IX.

Cutting costs without cutting sports

In the wake of the Quinnipiac case, in which it seemed that the university somewhat spitefully cut men's track and field when it was told it had to retain women's volleyball, at least temporarily, in order to work out some Title IX issues, it is a good time to note that budgets cuts do not have to equal cutting teams.
In recent meetings held by the Pac-10, the conference is looking to cut costs by trimming a certain amount of fat in the form of hotels for players before home games and limiting the number of players and support staff travelling to away games.
And this article out of New York about local DI schools Hofstra and SUNY Stony Brook speaks of the various measures these schools are taking to deal with their budgets shortfalls while remaining competitive, remaining Title IX compliant (Stony Brook is adding scholarships, in fact), and keeping all their teams. These schools are looking for schools closer to home to add to their schedules. They are seeking tournaments that do not require extensive travel. Such plans to limit travel could also have the added bonus of helping student-athletes balance their schoolwork with their athletics.

Spotlight on Summa v. Hofstra University

A while ago, we briefly noted an ongoing sexual harassment lawsuit against Hofstra University. We had only limited details to offer at that time, but we have since received a copy of the complaint filed by plaintiff Lauren Summa (thanks, reader!). We can now provide a more information about Summa's side of the story.

In 2006, Summa was hired as a student manager of the Hofstra University football team for a one year period that would include the primary fall season and the secondary spring season. Accompanying the team to away games, she was subjected to "relentless sexual harassment" by players on every bus trip. Players teased her for having a relationship with another player, including by creating a mocking webpage on facebook.com that Summa describes as "intentionally demeaning and sexist, implying that [she] was beastly, overweight, hypersexual, and overbearing." They suggested that she and her boyfriend have sex on the bus and made other offensive comments. On one trip, they barricaded her in the bathroom. On another trip, the coaches showed a movie that contained graphic sex scenes. This prompted players to jeer at Summa, and a particular scene depicting sex between a black man and a white women promoted one player to suggest to Summa that all "white women" like her want "black dicks." Summa, crying, asked the assistant coach to turn off the movie and when he did, players objected chanting "we want boobies" and ridiculed Summa even more.

Summa reported the movie incident to Coach Cohen (as she had the facebook incident). Cohen was irritated with Summa for complaining and tried to talk her out of reporting the incident to Campus Safety, arguing that it would bring negative attention to the football team. Summa followed through on her plan to report the incident, and was ultimately put in touch with the university's Equal Employment Officer, Maureen Murphy. Murphy said that she would arrange sensitivity training for the football team, but this did not happen. One of Summa's primary tormenters, Eric Taylor, was kicked off the team for reasons unrelated to harassment. Yet Taylor continued to torment Summa throughout the winter, accusing her of causing his dismissal from the team.

At the beginning of the spring season, Summa reported to work, only to find that Coach Cohen had hired a replacement for her. He told her that he presumed she was not interested in continuing with the position. Summa alleges that this presumption, contrary to custom and to her understanding with Cohen that she would work the whole year, was retaliation for complaining about harassment. The retaliation continued when Summa's offer to work for the University Relations Office was rescinded soon after Summa filed a complaint about the football incident with the state division of human rights.

Summa filed suit in federal district court, alleging that both the underlying harassment and the retaliation she experienced for reporting it violate both Title VII, Title IX, and New York's Human Rights Law. She seeks damages and an injunction against Hofstra's similar conduct in the future.

While we don't know if Hofstra will seek dismissal, attempt to settle, or proceed to trial, it should be factoring in the plaintiff-favoring trend in recently sexual harassment decisions involving college athletics -- including this case against the University of Colorado, this case against the University of North Carolina, and this case against the University of Washington, as well as the big jury verdicts in the retaliation cases against the athletic department at Fresno State.

More Coverage of Sexual Harassment in College Sports

Athletic Business, a trade journal for the sports and recreation industry, examines sexual harassment in college sports in this month's issue. The article suggests that Title IX is increasingly becoming the vehicle not only for equal opportunity claims, but sexual harassment claims as well. It mentions as examples a number of cases we follow on the blog -- including the recently-settled lawsuit involving harassment by UNC women's soccer coach Anson Dorrance, the charges against FGCU volleyball coach Jaye Flood, and all of the Fresno State cases -- as well as one case we didn't know about -- a lawsuit against Hofstra in which a female student manager for the football team alleges that she was harassed by the players and fired when she complained (for more on that case, see this archived coverage by the local TV news).

The article includes quotes from Title IX expert Professor Nancy Hogshead-Makar and attorney Robert Clayton of Littler Mendelson (FGCU's counsel). Both point out that its easier in the context of athletics for comments that are normal and appropriate ("you really look like you're developing those leg muscles") to devolve into comments that contribute to a hostile environment ("you have great legs"). They advise athletic departments to avoid legal trouble by developing, implementing, and enforcing policies aimed at preventing sexual harassment from occurring and responding effectively and efficiently when harassment occurs.