Reverse Title IX sexual harassment case is reinstated

The Court of Appeals has reinstated a sexual harassment lawsuit against a pharmacy college, finding that the school was deliberately indifferent to the hostile educational environment created by a female teacher who propositioned a male student.

The case is Papelino v. Albany College of Pharmacy, issued on January 24. In a reverse sexual harassment scenario, Professor Nowak persisted in making sexual advances on Papelino, who made it clear he was not interested. When Papelino couldn't take it anymore, he told Nowak that he would report her actions to Dean White, who admittedly did nothing about the problem because he "didn't want to let it out." Shaw then accused Papelino and two of his roommates of cheating in violation of the College Honor Code. Expelling two of the three students, a college committee found that all three students had in fact cheated, basing its conclusion on some questionable statistical evidence that a state court later rejected as unreliable and arbitrary. After Papelino brought this lawsuit, the college agreed to certify his degree to Florida licensing authorities on condition that the college be allowed to tell the Florida authorities that "it may be determined in a pending action commenced by Mr. Papelino that the charges were true, which may result in the revocation of Mr. Papelino's degree."

All of this adds up to a hostile educational environment, quid pro quo sexual harassment and retaliation in violation of Title IX, which prohibits gender discrimination in the schools. The Court of Appeals (Cabranes, Chin and Winter) says the quid pro quo claim goes to a jury because the college knew about the sexual advances once Papelino complained to Dean White about, among other things, "favorable marks because of actions" and "something about dinners or ... going out." Although Title IX plaintiffs have to satisfy the demanding "deliberate indifference" test, Papelino can do so because Dean White did not follow-up on his complaint. Quid pro quo liability may also attach because the jury can find that Professor Nowak falsely charged plaintiff with cheating shortly after he rejected her advances. This sequence of events dovetails with Papelino's retaliation claim, which also goes to the jury because of the vindictive cheating allegations and the College's refusal to certify his degree unless it could tell Florida authorities that this lawsuit might result in an adverse finding on the (already repudiated) cheating allegations.

Papelino also makes out a hostile educational environment claim. Enough sexual acts took place within the statute of limitations to send this case to the jury. Papelino says the Professor actually exposed her breasts at him during the cheating hearing, "a final sexual taunting of Papelino and the others," the Second Circuit says. The jury can also find that much of Papelino's improper conduct, overtly sexual or not, was on account of sex.

A few words on inferences and circumstantial evidence on this summary judgment motion. The Court says that the jury may find that plaintiff can link his sexual harassment complaint with the cheating charges which almost ruined his education. It seems that the Professor says that she was not aware that Papelino complained about her and that therefore the cheating charges could not have been retaliatory since she did not know about plaintiff's complaint. But the jury could find otherwise, because Nowak became cold and hostile toward plaintiff after he complained about her to Dean White, suggesting that the Dean told the Professor about the complaint after all. And, not only did the cheating committee discuss the allegations of sexual harassment during the hearing process, but even if they did not know, a jury could find that "they were acting on Nowak's explicit encouragement, or that they acted without information that White should have imparted to them."