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GALLANT v. BOARD OF TRUSTEES OF CALIFORNIA STATE U

March 27, 1998

DAVID SHANON GALLANT, Plaintiff,
v.
BOARD OF TRUSTEES OF CALIFORNIA STATE UNIVERSITY; JAMES MAY, an individual, Defendants.



The opinion of the court was delivered by: ZIMMERMAN

 Defendants the Board of Trustees of California State University and James May ("defendants") have moved for summary judgment pursuant to Fed. R. Civ. Pro. ("Rule") 56. The parties have consented to the jurisdiction of a United States Magistrate Judge for all proceedings including entry of final judgment pursuant to 28 U.S.C. § 636(c).

 The Federal Rules of Civil Procedure provide for summary judgment when "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 party is entitled to a judgment as a matter of law." Rule 56(c). A genuine issue of material fact exists if a reasonable jury could return a verdict in favor the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The court does not make credibility determinations or weigh conflicting evidence, and views the evidence in the light most favorable to the nonmoving party. T.W. Elec. Serv. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630-631 (9th Cir. 1987) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986)).

 The facts, viewed in the light most favorable to plaintiff, and generally disputed by defendants, are the following: Plaintiff, a 49-year-old Native Alaskan gay woman, met defendant May on November 3, 1995. At the time she was a student at the Academy of Art in San Francisco. Dr. May was Dean of the Center for Science, Technology and Information Resources at California State University, Monterey Bay (CSUMB). Dr. May invited plaintiff to tour the campus and then to a speaking engagement in Monterey. Plaintiff told Dr. May that she had a bus ticket home but Dr. May offered her a ride home, which she accepted. On that drive, Dr. May asked plaintiff if she was gay. He spoke of unhappiness in his marriage and told plaintiff, "I can barely f--k my wife, she's so dry." He also stated that he was "in love" with a male colleague at CSUMB who had "a nice tight ass." He described an encounter with this colleague and asked plaintiff's opinion whether this suggested the colleague had a sexual interest in him.

 Plaintiff subsequently matriculated at CSUMB. After arriving at CSUMB and finding her housing uninhabitable, she sought Dr. May's assistance. He suggested she contact two people, one of whom was the male colleague in whom Dr. May was interested. Plaintiff then rented a room in the colleague's house. Dr. May came to this house about five times. On one of those occasions, in January 1996, Dr. May started drinking, sat at the kitchen table, spoke of his extra-marital affairs, and said he was having good sex with a female co-worker at CSUMB, commenting "I haven't had such good sex until I stopped f--king my wife." Plaintiff left the room and went outside.

 In February 1996, when plaintiff was introducing Dr. May to Dr. Mark Mudge, Dr. May put his hand on her arm and kissed her on the cheek in front of Dr. Mudge. Plaintiff backed away. Dr. May did not engage in any offensive sexual speech or conduct after February 7, 1996.

 Plaintiff did not report these incidents because she was afraid Dr. May would not honor the promises he made to her. When plaintiff later asked Dr. May about his promises, he accused her of gossiping, said she was unreasonable, asserted that he had never made any promises, and told her he would not help her because she would look like a "special Indian student." He would turn and walk the other way when he saw her in the halls.

 In June 1996 plaintiff raised the issue of Dr. May's conduct with members of the CSUMB administration and charged sexual harassment. CSUMB began an investigation into the charges. In a report dated August 14, 1996, which plaintiff has submitted as evidence supporting her claim, the CSUMB official responsible for the investigation concluded that "while sexually explicit discussions may have taken place, this conduct does not violate the University's sexual harassment policy.... None of these events unreasonably interfered with the student's performance or created an intimidating, hostile, offensive or otherwise adverse educational environment." Plaintiff filed this lawsuit alleging violations of Title IX of the Educational Amendments of 1972, 20 U.S.C. § 1681 et seq., and 42 U.S.C. § 1983. *fn1" Plaintiff is still enrolled at CSUMB.

 The parties agree that Title VII principles guide the resolution of Title IX sexual harassment claims. See Oona, R.-S.- v. McCaffrey, 122 F.3d 1207 (9th Cir. 1991) (denying qualified immunity in Title IX case and citing Doe v. Claiborne County, 103 F.3d 495, 514 (6th Cir. 1996) for proposition that Title VII principles guide resolution of Title IX sexual harassment claims); Patricia H. v. Berkeley Unified School Dist., 830 F. Supp. 1288, 1290-93 (N.D. Cal. 1993). A Title VII or Title IX plaintiff may allege sexual harassment under two theories: quid pro quo2 and hostile environment. Plaintiff affirmed at oral argument that she is only claiming under a hostile environment theory in the present case.

 Whether conduct is sufficiently severe or pervasive to violate Title VII or Title IX can be determined only by looking at all the circumstances. Harris v. Forklift Systems, 510 U.S. 17, 20, 126 L. Ed. 2d 295, 114 S. Ct. 367 (1993)(Title VII). In evaluating the conduct and the circumstances, the court considers the following factors: (1) the frequency of the conduct; (2) its severity; (3) whether it is physically threatening or humiliating or a mere offensive utterance; and (4) whether it unreasonably interferes with the student's performance. Id., Davis v. Monroe County Board of Education, 120 F.3d 1390, 1418 (11th Cir. 1997). *fn3" The conduct must be judged from both a subjective and an objective perspective.

 I find that Dr. May's conduct was not sufficiently severe to be actionable. Plaintiff does not claim that any of Dr. May's comments were directed at her; rather she claims he used her as "an emotional dumping ground." Plaintiff's most serious allegations, involving the car ride to San Francisco and the pizza dinner, occurred before plaintiff was a student. Despite the alleged severity of Dr. May's conduct, plaintiff applied to CSUMB. When she arrived in Monterey and had problems with her housing, she contacted Dr. May for help and at his suggestion moved into the home of the male colleague about whom Dr. May had spoken in sexually graphic terms, to plaintiff's alleged disgust. Plaintiff's decisions simply do not square with her allegations of a hostile, intimidating or abusive environment. Indeed, she seems to have been more concerned that Dr. May did not provide the promised equipment. The CSUMB internal investigation report records that plaintiff stated that:

 
her primary concerns were the way in which her academic program has been handled and the failure to deliver on promises made to her. In a telephone conversation on August 1, 1996, I explained to her that this investigation centered on her allegations of sexual harassment. She said, "That's not the piece [the sexual harassment allegations] that's important to me. If that's ...

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