Marketa Wills v. Brown University

184 F.3d 20, 1999 WL 488089

• Court: Court of Appeals for the First Circuit
• Decided: December 11, 1999
• Docket: 98-1701
• Status: Published

Opinions

BOUDIN, Circuit Judge.

This appeal involves a lawsuit seeking damages for sexual harassment brought in the district court by the plaintiff, Marketa Wills, against Brown University and one of its former teachers, Professor Kayode Adesogan. The principal issues on appeal, but not the only ones, involve Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. The background events and the proceedings in the district court are as follows.

Adesogan, a chemistry professor at a Nigerian university, taught as a visiting professor at Brown between 1991 and 1994. In the fall semester of 1992, Wills— then a sophomore at Brown — took a course in organic chemistry. Although assigned to a section taught by Professor Ronald Lawler, Wills began to attend lectures in the other organic chemistry section, this one taught by Adesogan. Wills had earlier introduced herself to Adesogan at a social event and attended a small study group held by Adesogan in addition to his formal lectures.

On December 9, 1992, Wills sought out Adesogan in his office because she was having difficulty in the course. During this encounter, while purporting to pray with Wills, Adesogan twice pulled Wills into his lap, allegedly put his hand under her shirt, rubbed her stomach and twice touched or rubbed her breasts. The next day Wills met with Dean Karen Romer, who was then associate dean of academic affairs and had special responsibility for sexual assault or harassment claims; on December 14, 1992, Wills filed a written complaint. This incident lies at the core of Wills’s subsequent suit against Brown and Adesogan.

. In response to Wills’s written complaint, Provost Frank Rothman and Dean of Faculty Bryan Shepp met with Wills on December 14, 1992, and then separately with Adesogan on December 15, 1992. Adeso-gan admitted hugging Wills, drawing her onto his lap and touching her breast, although he denied placing his hand under Wills’s shirt. By letter dated December 23, 1992, Rothman placed Adesogan on probation, stating in a written reprimand that a further incident would be grounds for immediate dismissal but that this appeared to be Adesogan’s first instance of improper behavior during his stay at Brown.

Rothman was mistaken. In October 1992, Adesogan had inappropriately hugged and touched another student, Laura Schleussner, who was enrolled in his section and had come to meet with him for help. Schleussner had then met with Dr. Barbara Tannenbaum, a lecturer at Brown, who was acting as an ombudswom-an for Brown to oversee sexual harassment services. At trial, Schleussner and Tannenbaum gave somewhat different versions of the meeting, especially as to how much detail Schleussner provided. It appears that Schleussner wanted to remain anonymous but did want something done to prevent repetitions.

Schleussner had also complained to a chemistry department lecturer whom she knew and trusted, and that lecturer spoke in due course with Lawler, who taught the other section of organic chemistry. Lawler in turn told Adesogan that students would feel more comfortable if Adesogan kept his door open when conferring with students, but Lawler — who may have known few details — did not further advise the provost or anyone else in Brown’s administration.

In February 1993, Rothman accepted the recommendation of the chemistry department that Adesogan be retained for another year and given a raise. In September 1993, another student, Tilly Gur-man, filed a complaint that Adesogan had sexually harassed her in the fall of 1992. Romer informed Rothman, and Romer suggested no action because the Gurman incident had occurred before Adesogan had been reprimanded, and both Romer and Rothman believed that the warning to Adesogan in December 1992 had been sufficient.

In January 1994, another student, Amy Sanford, reported to Romer that between the fall of 1993 and January 1994, Adeso-gan had engaged in inappropriate conduct with Sanford (e.g., by repeated hugs and kisses), and Sanford told Romer that Ade-sogan had previously harassed another friend. Romer reported the matter to her immediate superior but it was not carried further, apparently because Sanford had not wanted it officially pursued.

Wills, after her own experience with Adesogan in December 1992, had not sought any further contact with him. She saw him thereafter on two different occasions: first, on an unspecified date, Adeso-gan entered a drugstore where Wills was working, and Wills immediately retreated to a back room; second, in January 1994, Wills enrolled in another chemistry course and discovered that Adesogan was the teacher. Wills testified that she rarely attended the lectures after the first session, but Adesogan did not long remain at Brown. During March 1994, Brown received further complaints of harassment by Adesogan from six or more other female students. That same month Brown dismissed Adesogan. Wills ultimately graduated from Brown and later enrolled in medical school in Pennsylvania.

In December 1995, just short of three years after her meeting with Adesogan, Wills filed a complaint in district court against Brown and Adesogan. The complaint set forth eight counts against Brown, Adesogan, or both, under state law (counts I through VIII ¹) and two further federal claims against Brown under Title IX, one designated “hostile environment sex harassment” (count IX) and the other designated “quid pro quo sex harassment” (count X). Adesogan never responded, and the case proceeded solely against Brown. A default judgment in the amount of $275,000 was later entered against Ade-sogan.

In due course, Brown moved for summary judgment as to all counts against it. Following a hearing on November 24, 1997, the district court granted summary judgment in Brown’s favor as to the claims for negligent hiring (count II), negligent retention (but not negligent supervision, which was a part of the same count III), negligent entrustment (count IV), and intentional and negligent infliction of emotional distress (counts V and VI). Thereafter, the court denied summary judgment on Wills’s claims based on a hostile environment theory of sex discrimination. This theory was explicitly set forth in count IX based on Title IX (and by implication in count VII under the state civil rights statute).²

This disposition left for trial four separate claims against Brown: assault and battery (count I), negligent supervision (count III), and sex discrimination based both on a hostile environment and a quid pro quo theory (counts IX and X). Trial began on March 19, 1998, and when Wills rested her opening case, the district court granted Brown’s motion for a directed verdict only as to- the assault and battery claim and the quid pro quo sex discrimination claim. Fed.R.Civ.P. 50(a). Following further evidence, the negligent supervision and hostile environment claims were submitted to the jury.

On March 31, 1998, the jury returned a verdict in Brown’s favor on both claims. Thereafter Wills filed a post-trial motion seeking judgment notwithstanding the verdict and, alternatively, a new trial on these same claims. Fed.R.Civ.P. 50, 59. The district court denied Wills’s motion and entered judgment in favor of Brown. Wills now appeals, challenging (in her main argument) the district court’s exclusion of evidence on her hostile work environment claim'which was rejected by the jury. She also attacks the district court’s grant of summary judgment on three of the state tort claims, its grant of directed verdicts on her assault and battery and her quid pro quo claims, and its denial of a new trial on the two claims rejected by the jury.

1. Title IX forbids schools that receive federal ' funding from discriminating against students “on the basis of sex.” 20 U.S.C. § 1681(a). Starting from the now-accepted premise that sexual harassment can constitute sex discrimination, Mentor Savings Bank, FSB v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986), the Supreme Court has endorsed two different, although related, theories as to how such harassment can ■ constitute sex discrimination either in the workplace (Title VII) or school context (Title IX).³

One theory, popularly known as “quid pro quo” harassment or discrimination, occurs most often when some benefit or adverse action, such as change in salary at work or a grade in school, is made to depend on providing sexual favors to someone in authority, Lipsett v. University of Puerto Rico, 864 F.2d 881, 898 (1st Cir.1988); the other theory, under the rubric “hostile environment,” applies where the acts of sexual harassment are sufficiently severe to interfere with the workplace or school opportunities normally available to the worker or student. Meritor, 477 U.S. at 66, 106 S.Ct. 2399; Davis v. Monroe County Bd. of Educ., — U.S. —, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999). In this case, Wills advanced both theories against Brown—one in count IX and the other in count X. But the evidence now in dispute was offered as support for the hostile environment claim (the quid pro quo claim never reached the jury).

Broadly speaking, a hostile environment claim requires the victim to have been subjected to harassment severe enough to compromise the victim’s employment or educational opportunities and, in the case of a Title IX claim (but not under Title VII), the institution must have had actual knowledge of the harassment and have exhibited deliberate indifference to it. Gebser, 118 S.Ct. at 1997-99. If the institution takes timely and reasonable measures to end the harassment, it is not liable under Title IX for prior harassment. Id. Of course, if it learns that its measures have proved inadequate, it may be required to take further steps to avoid new liability.

From the outset, Wills’s main claim based on a hostile environment theory has been that Wills was harassed by Adesogan on December 9, 1992, and that Brown is responsible for Adesogan’s wrongdoing under Title IX because Brown had prior notice of the earlier Schleussner episode but did nothing to prevent the threat to other students such as Wills. Wills wanted the jury also to know that after her own harassment on December 9, Brown did not immediately remove Adesogan from the faculty or otherwise take action beyond the reprimand; and, far more important, she wanted it to know that Brown later received additional complaints from others in 1993 and 1994 that Adesogan had harassed a half-dozen or more additional victims. The admissibility issue was presented and resolved in limine.

In excluding the evidence, the district judge reasoned that if Brown had sufficient prior knowledge of the Schleussner episode—and this was a fact question— then it was responsible for Adesogan’s action on December 9, 1992, regardless whether it later took adequate remedial steps and regardless whether it got later complaints from other students. Conversely, even if the remedial steps were inadequate and other students were later harassed, this did not create liability on Brown’s part for Adesogan’s harassment by Wills on December 9, 1992, before the reprimand and before the complaints received in 1993 and 1994. On this theory, the judge drew a sharp line between what happened before and after December 9, 1992.⁴

At different times, Wills has offered different theories as to why the post-December 9 evidence in question is relevant to Brown’s liability, but the argument principally made in the district court—and the only argument fairly developed in her opening brief in appeal—is this; the showing of an inadequate response to harassment is a standard issue in Title IX litigation and (says Wills) she was therefore entitled to show that Brown’s response in December 1992 was inadequate and failed to prevent the harassment of other students thereafter. Wills has cited throughout a set of cases, including one of our own, where inadequate response evidence was central. See, e.g., Gebser, 118 S.Ct. at 2000; Lipsett, 864 F.2d at 902-07.

The difficulty for Wills is that evidence of an inadequate response is pertinent to show fault and causation where the plaintiff is claiming that she was harassed or continued to be harassed after the inadequate response. See Gebser, 118 S.Ct. at 1999; Lipsett, 864 F.2d at 907. But here, as already noted, Wills’s claim was of a single specific harassment incident that occurred before the reprimand and the later complaints (albeit one that caused continuing damages). There is no mechanical rule that makes such evidence relevant or irrelevant in the abstract: relevance depends on the facts and the theory of the case being pressed.

Here, in relation to Brown’s liability for the December 9 incident, the reprimand evidence was perhaps thinly relevant because, although it had nothing to do with whether Brown had prior notice before December 9 or whether Adesogan’s behavior on that occasion violated the statute, it could arguably have been admitted as casting some backward light on Brown’s general attitude — and therefore on the issue whether Brown was “deliberately indifferent” in its handling of the Schleussner claim and the resulting exposure of other students, including Wills, to Adesogan’s behavior. But the reprimand was at best marginal to the main issues at trial — the key evidence on “deliberate indifference” was what Brown knew and what it did in response to Sehleussner’s complaint — and, taken alone, the reprimand was more favorable to Brown than to Wills (Brown wanted it in evidence). As it happens, the jury later learned that Adesogan had not been fired until 1994.

Wills’s real hope was the evidence as to later claims made by other students, Brown’s arguably casual treatment of the Sanford claims in January 1994, and the obvious harm inflicted on others by Adesogan’s continuing depredations. Yet, this evidence is even more remote to Brown’s general attitude in 1992, had a potential for severe prejudice, and would have required the trial to explore circumstances suiTounding claims and acts of harassment of other victims which — unlike the Schleussner episode — had nothing to do with the vital question whether Brown had notice prior to December 1992.

In her reply brief on appeal, Wills offers a different theory entirely. In effect, she asserts that Adesogan’s harassment of her continued after December 1992 because Adesogan remained as a teacher and Wills was shocked and upset to find him in January 1994 as her teacher in new chemistry course. Her deposition gives a somewhat tamer description of her reaction, but in any event Wills was not required to take any course from Adesogan. Wills’s other exposure to Adesogan was a chance glimpse of him in a drugstore at some earlier, unidentified point.

It is sufficient answer that theories offered for the first time in the reply brief are not preserved. Executive Leasing Corp. v. Banco Popular, 48 F.3d 66, 67-68 & n. 3 (1st Cir.1995). Indeed, it is doubtful that Wills said enough in the district court to preserve the argument for appeal; at best, there are a few hints. But even if preserved below, the argument has to be renewed in the opening brief on appeal, so that the appellee has a chance to respond. Reply briefs are to counter the appellee’s arguments, not to offer new theories of error for the first time. Nevertheless, Wills’s belated continuing harassment theory is a very weak one on these facts. On some cases, merely to maintain a harasser in a position of authority over the victim, after notice of prior harassment, could create new liability. But it would not be easy to describe Adesogan’s mere presence on a large campus as harassment of Wills, or to describe Brown’s reasonably firm reprimand as representing “deliberate indifference” under Davis, 119 S.Ct. at 1673. Brown’s treatment of Sanford’s January 1994 complaint is a closer question on the latter issue, but even here Sanford’s request for anonymity is not irrelevant and the connection to Wills is slight.

However, we need not decide whether this continuing harassment theory could be made to work on the present facts. Even if this theory was fairly presented to the district judge which we doubt — Wills did argue that she had suffered damages after December 1992 but that is a quite different matter — it was not preserved on appeal. Needless to say, this conclusion is not an endorsement of Brown’s handling of the Adesogan debacle, which was remarkably inept even when one appreciates that there are due process values for the professor and concerns about student anonymity that help shape university procedures.

Wills’s remaining evidentiary claims can be briefly answered. She complains that in a non-responsive answer to a question from Wills’s counsel, one of the Brown officials testified that Brown had fired Adesogan, and Wills then brought out the fact that he was not fired until March 1994. The district court did not permit further inquiry, and Wills now says that she was “severely prejudiced” by the non-responsive answer and wrongly deprived of the opportunity to explain to the jury that the reason he was fired was “for sexually assaulting nearly seven women in one week.”

But telling the jury that Adesogan had been fired in 1994 was hardly harmful to Wills: it showed that Brown did not fire Adesogan in December 1992—the very point that Wills says she was so anxious to present to the jury to show the inadequacy of the reprimand—and it probably indicated to the jury that Adesogan’s behavior was even worse than it had already been led to believe by Wills’s own testimony. The reasons for excluding the March 1994 harassment incidents has already been discussed.

Finally, Wills complains that she was prevented from offering testimony from two students, Tilly Gurman and Eve Zaritsky, who were ready to testify that Adesogan had harassed them in the fall of 1992. Gurman admittedly did not report the incident to Brown until September 1993, and there is no indication that Zarit-sky ever reported her allegations. Nothing supports Wills’s argument on appeal that the evidence should have been admitted because it increased the likelihood that Brown knew of these incidents prior to December 1992 and was therefore more culpable for failing to remove Adesogan prior to the December 1992 incident with Wills. One other objection to testimony involving former Brown dean, Toby Simon, is not worth discussing.

2. We turn now to Wills’s remaining claims of error, starting with the district court’s grant of summary judgment as to three of her ten claims: intentional infliction of emotional distress, negligent hiring, and negligent retention. Wills has not appealed from the grant of summary judgment as to the negligent entrustment claim. All four of the these claims are governed by Rhode Island law.

Starting with intentional infliction of emotional distress, the tort requires “extreme and outrageous” conduct that “intentionally or recklessly” causes severe emotional distress, which must include some physical symptoms. Andrade v. Jamestown Housing Authority, 82 F.3d 1179, 1187 (1st Cir.1996); Elias v. Youngken, 493 A.2d 158, 163-64 (R.I.1985). Wills’s opening brief simply asserts in a few sentences that Brown’s conduct was extreme and outrageous because it ignored student complaints of sexual harassment by Adesogan and thereby “allowed Adeso-gan to assault Ms. Wills unfettered.”

The only knowledge that Brown was shown to have had before the “assault” was the Schleussner incident, but it is common ground that Schleussner did not want to file a formal complaint. Very difficult problems are posed in balancing a student’s request for anonymity or limited disclosure against the need to prevent future harassment. Viewed in retrospect, Brown’s procedures left much to be desired. But there is nothing to the notion that Brown was behaving outrageously when it failed to pursue the Schleussner complaint beyond the limited informal measures instigated by Schleussner herself.

Under Rhode Island law, an employer is required to exercise reasonable care in selecting its employees. Welsh Mfg., Div. of Textron, Inc. v. Pinkerton’s, Inc., 474 A.2d 436 (R.I.1984). Wills says that Brown made no search of Adesogan’s background before hiring him as a visiting professor beyond a look at his work and resume and an inquiry to one of his colleagues. "Whether more was reasonably required does not matter because Wills pointed to no evidence that a more searching inquiry by Brown in Nigeria or elsewhere would have alerted it to the problem he posed. The district court dismissed the claim on this ground and Wills simply ignores this issue on appeal.

Wills’s last argument, as to summary judgment, is that the district court should not have stricken the reference to “retention” in her count claiming negligent supervision and retention. The district court struck the retention language because it said that no authority had been provided for-such a claim under state law and it thought that the multiplicity of locutions was confusing. The court also said that there was no basis for finding Brown negligent in not firing Adesogan prior to December 1992 and that the only plausible claim was for negligent supervision, which the court sent to the jury.

Assuming for the moment that there is a separate state law claim under state law for negligent retention, the two claims on these facts are very close and lack of adequate supervision is certainly the stronger of the two. Indeed, on appeal—in the very brief passage addressed to this issue—Wills muddles her two theories by arguing that “Brown did not supervise or monitor” Adesogan, or give him sexual harassment training or counseling, even after he was put on probation. On the present facts, we are not persuaded that Wills adequately explained her separate “retention” theory or was prejudiced by its omission.

The remaining substantial objections are to the district court’s grant of a directed verdict in favor of Brown on two other counts: the quid pro quo theory of sexual harassment under Title IX and the assault and battery claim under state law. The test, in both cases, is whether a reasonable jury could on the evidence presented find in favor of Wills, resolving doubts and credibility issues in her favor; and our review on this issue is de novo. Combustion Eng’g, Inc. v. Miller Hydro Group, 13 F.3d 437, 441 (1st Cir.1993).

The quid pro quo theory presents the more complicated issues and we begin with it. Quid pro quo cases normally involve situations in which someone with authority over the victim inflicts a penalty or withholds a benefit to obtain sexual favors, Lipsett, 864 F.2d at 898, and it is easy to understand why the district judge doubted that this case fell into that category. Wills was not a student of Adesogan in December 1992, he had no authority over her grade, he never said anything that conditioned her grade or his tutoring services on Wills’s agreeing to submit to his advances, and—as the district court pointed out—she did not testify that she understood Adesogan to be making to such a threat. Accordingly, the judge withdrew this theory from the jury.

We are not certain that we agree with the district court’s reasoning, although the question may be a close one and need not he finally resolved here. Patently, Wills’s stronger claim was for hostile environment and the quid pro quo claim is a stretch. Indeed, in Ellerth, the Supreme Court recently spoke of the “limited utility” of distinguishing between quid pro quo “threats that are carried out” and “bothersome attentions” so severe as to create a hostile environment. 118 S.Ct. at 2264. But at present the categories remain and, if they are to be entirely elided, it is for the Supreme Court to do so. Thus, our question is one of evidence.

Here, it could be argued that while Adesogan had no authority over Wills’s grade, informal tutoring is a benefit of Brown’s offering; Adesogan’s hugging and touching effectively cost Wills the opportunity for further tutoring from Adeso-gan; and it does not matter whether Ade-sogan expressed such a threat or whether Adesogan or Wills so interpreted the situation. Certainly threats need not be explicit, see Lipsett, 864 F.2d at 913; Sanders v. Casa View Baptist Church, 134 F.3d 331, 339 (5th Cir.1998), and it is probably an open question under the case law whether this kind of benefit (informal tutoring from a professor not the student’s teacher) is enough to create liability under a quid pro quo theory.⁵ But even if we assume dubi-tante that there was enough evidence to get to the jury on a quid quo pro claim, there is no way that such an instruction could have altered the outcome here. Sometimes the quid pro quo and hostile environment theories connect to markedly different facts. Imagine a quid pro quo case where a raise is denied to the employee because the employer was turned down on a simple request for a date; and contrast a hostile environment claim based on crude sexual remarks from fellow employees. But on our facts, the theories effectively overlap: the only sense in which a benefit was denied was that Wills felt so uncomfortable in the environment that Adesogan had created that she herself refused to avail herself of his tutoring. This essentially common issue explains why, in this case, the difference between the two theories tends to disappear. Cf. Ellerth.

Brown chose in its closing argument to focus primarily on the lack of notice to Brown based on the Schleussner episode, arguing that there was a conflict between Tanenbaum and Schleussner on the issue and that Tanenbaum should be believed. Secondarily, Brown argued that Wills had not been damaged. Either theory would also dispatch the quid pro quo claim but the jury may have adopted neither of these arguments; during jury deliberations it asked the judge to further explain the concept of hostile environment. He de-dined to elaborate, and a general verdict followed in favor of Brown so we do not know on what ground the jury actually resolved the matter.

However, even if the jury found both notice and damage, a jury that (improbably) thought Adesogan’s actions too mild to create a hostile environment could not easily have concluded that Wills had been denied the benefit of Adesogan’s tutoring. Thus, on the realistic assessment we are asked to make under the harmless error doctrine, there is no practical likelihood that the weaker quid pro quo claim would have prevailed before a jury that rejected the stronger (and manifestly more applicable) hostile environment claim. On our facts, the refusal to instruct on quid pro quo, assuming arguendo that it was error, was harmless.

This brings us to Wills’s claim that the district court erred in directing a verdict on the assault and battery charge. Since Adesogan’s conduct could easily be viewed as assault, the directed verdict turned on whether Brown could be held liable under Rhode Island law for the intentional tort of assault by Adesogan, Brown’s employee. Wills argues that under Rhode Island' law, a jury could find Brown liable for Adeso-gan’s offensive touching of Wills on December 9, 1992, because it occurred during the course of an activity that he was hired to perform, namely, the instruction of students. The district judge ruled that this was not the law of Rhode Island.

Although (surprisingly) we are not entitled to give special weight on this issue to the experience of the district judge with Rhode Island law, Gibson v. City of Cranston, 37 F.3d 731, 735 (1st Cir.1994), the cases confirm his conclusion. In Rhode Island, an employer is not liable for an assault by its employee merely because it occurred during the course of employee’s work. Labossiere v. Sousa, 87 R.I. 450, 143 A.2d 285 (1958) (no liability where waitress pushed customer). Rather, where the employer has not actually authorized the assault, conduct must itself be a reasonable and foreseeable incident of the employee’s duties. Bryce v. Jackson Diners Corp., 80 R.I. 327, 96 A.2d 637 (1953) (store manager sought to restrain a customer trying to leave without paying).

Obviously, it was no part of Adesogan’s duties to hug and grope students who came to him for tutoring. Rhode Island could easily extend liability for intentional torts more broadly and may have done so by statute in some situations. But it has not done so for assault, and the line drawn by Labossiere and Bryce remains in force. Drake v. Star Market Co., Inc., 526 A.2d 517 (R.I.1987). Accordingly, the assault claim was properly withdrawn from the jury because — fully accepting Wills’s version of events — Adesogan but not Brown was liable for the assault under state law.

Wills’s final ground for appeal is the district court’s denial of her motion for new trial on the two remaining claims (hostile environment and negligent supervision) rejected by the jury. The district court’s discretion in granting or denying a new trial is very broad and the arguments made by Wills are in substance some of the same claims we have already addressed (and no others). This was surely a close case on the claims that went to the jury and it could easily have been resolved in Wills’s favor, but juries are there to decide close cases, and nothing required the district judge to afford Wills a new trial.

The judgment of the district court is affirmed. Each side shall bear its own costs on the appeal.

It is so ordered.

1 . The state claims were for assault and battery (count I), negligent hiring, supervision and retention, and entrustment (counts II-IV), intentional and negligent infliction of emotional distress (counts V-VI), and sex discrimination under Rhode Island's civil rights statute (counts VII-VIII). Both defendants were named in counts I and V, Adesogan alone in count VIII, and Brown alone in all others.

2 . Throughout the proceedings, the parties have treated the claim against Brown under the Rhode Island sex discrimination statute (count VII) as paralleling the separate claims for hostile environment and quid pro quo sex discrimination under Title IX (counts IX and X). Wills’s brief on appeal does not refer separately to the state civil rights statute.

3 . Title VII similarly forbids discrimination in employment "because” of sex, and in some respects, but not others, the two statutes are conslrued in pari materia. Cf. Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 118 S.Ct. 1989, 1997, 2002, 141 L.Ed.2d 277 (1998). Recently, in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 2264, 141 L.Ed.2d 633 (1998), the Supreme Court raised some doubt as-to how long the two theories of harassment will be treated separately, but Wills's case was tried on the assumption that there are two distinct theories.

4 . The line was drawn with respect to evidence designed to show Brown's liability; in proving damages, Wills was allowed to show not only the assault on December 9, 1992, but also her own condition and reactions thereafter during the remainder of her stay at Brown, including her distress in seeing Ade-sogan at the drugstore and in the classroom.

5 . Obviously, this lost benefit is different from the loss of good grades or like matters; Wills could certainly have sought tutoring from her own professor. But where one draws the line is far from clear. There is little case law, but compare Lipsett, 864 F.2d at 913-14, with Lam v. Curators of the Univ. of Mo., 122 F.3d 654, 657 (8th Cir.1997), and one possible approach is to leave this line-drawing to the jury in close cases.