Schoepfer v. Univ. of NH

• Court: District Court, D. New Hampshire
• Decided: March 4, 1998
• Docket: CV-97-402-SD
• Status: Published

Opinion

Schoepfer v. Univ. of NH CV-97-402-SD 03/04/98 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Joann D. Schoepfer, f/k/a Shelan

v. Civil No. 97-402-SD

The University of New Hampshire, et al.

O R D E R

___________________________ Introduction

In this civil rights action plaintiff Schoepfer alleges that

her employer. University of New Hampshire ("UNH"), discriminated

against her in the terms and conditions of employment on the

basis of her sex and religion. Presently before the court is

defendants' motion to dismiss to which plaintiff objects.

_______________________________ Facts

Plaintiff Schoepfer was employed by the University of New

Hampshire as a Public Safety Officer. Her immediate supervisor

was defendant Beaudoin, chief of the University Police at UNH.

Schoepfer claims that Beaudoin was hostile towards her because of

her gender and religious affiliations. She further claims that

Beaudoin unlawfully discriminated against her by verbally

harassing her, giving her less desirable job assignments, and

passing her over for promotions. ____________________________ Discussion

UNH argues it is entitled to judgment on Schoepfer's claim

under Title IX which prohibits "discrimination under any

education program or activity receiving federal financial

assistance." 20 U.S.C.A. § 1681(a) (West 1994). UNH argues that

the University Police is not itself an "education program or

activity" and that it is not enough to simply be an arm of UNH,

an educational institution. As support, UNH cites Prever v.

Dartmouth College, 968 F. Supp. 20, 25 (D.N.H. 1997), in which

the court adopted such a program-specific approach to whether a

program or activity is educational and therefore covered by Title

IX. There, the court held that Title IX does not apply to all of

an educational institution's programs or activities but rather

only those that are "educational in nature." Id. Thus, the

court held that Dartmouth College Dining Services, despite being

part of Dartmouth College, was not "educational in nature," and

thus not covered under Title IX. Id.

This court respectfully disagrees with the Prever court's

reading of Title IX. At the outset, it is not entirely clear

from the opinion what the Prever court believed distinguished an

educational institution's programs or activities that are

"educational in nature" from those that are not. The court

initially indicates that the program or activity must "bear some

2 relation to the educational goals of the institution." Id.

However, under this test, the distinction drawn by the court

would collapse because all of an educational institution's

programs can be said to "bear some relation to the educational

goals of the institution." The court later refines the "bear

some relation" language by indicating that the program must have

an "inherently educational goal." Id. Under this test, the

Prever court's distinction would significantly narrow the scope

of Title IX's coverage to only those few limited programs or

activities that have an "inherently educational goal."

Congress did not intend Title IX's coverage to be so

limited. First, Congress explicitly exempted "social

fraternities or sororities" from Title IX's scope. 20 U.S.C.A. §

1681(a)(6). However, this exemption would have been unnecessary

if Title IX by its terms only applied to those programs or

activities with an "inherently educational goal." Second, there

is no reason to believe that Congress was concerned with sex

discrimination in the classroom but not with discrimination in

housing, athletic programs, or other services provided by an

educational institution that are related to education but

nonetheless lack an "inherently educational goal." Third, the

regulations implementing Title IX prohibit discrimination in

programs only remotely related to education such as housing,

3 facilities (such as toilet, locker room and shower), health

insurance, and athletics, 34 C.F.R. § 106.31-106.41 (1996); see

also Cohen v. Brown University, 101 F.3d 155 (1st Cir. 1996)

(holding university's athletic program subject to Title IX's

prohibitions).

Additionally, following the limitations imposed on

construction of Title IX by Grove City College v. Bell, 465 U.S.

555, 570-574 (1984), Congress amended the statute to make clear

its intent that all operations of an educational institution fell

within its purview. As so amended, the statute now provides:

For the purposes of this chapter, the term "program or activity" and "program" mean all of the operations of . . . (2)(A) a college, university, or other postsecondary institution, or a public system of higher education . . . .

20 U.S.C. § 1687 (2) (A) .

Next, UNH argues that Title IX does not cover employment

discrimination against non-student employees of an educational

institution. As support, UNH cites Walters v. President &

Fellows of Harvard College, 601 F. Supp. 867 (D. Mass. 1985) and

Prever, supra, 968 F. Supp. at 25, both of which imply that only

students have standing under Title IX. Prever, supra, 968 F.

Supp. at 25 ("the plaintiff has not alleged that she is a

Dartmouth student."). However, the Supreme Court sguarely

addressed the issue in North Haven Board of Education v. Bell,

4 456 U.S. 512 (1982), holding that Title IX covers employment

discrimination against non-student employees of an educational

institution. The contrary holdings of the lower courts in

Walters and Prever must be disregarded. Thus, Schoepfer may

proceed with her Title IX claim despite the fact that she is not

a student.

Defendant Beaudoin seeks judgment on Schoepfer's Title VII

claim, because it is "settled law," according to Beaudoin, that

Title VII does not impose individual liability on supervisors,

but rather is limited in scope to the employer. While some

circuits have so ruled, the First Circuit, characterizing the

issue as "complex," Morrison v. Carleton Woolen Mills, Inc., 108

F.3d 429, 444 (1st Cir. 1997), has to date found it unnecessary

to do so. Id.; Serapion v. Martinez, 119 F.3d 982, 992 (1st Cir.

1997). Faced with the issue at an earlier date, this judge ruled

in favor of individual liability. Lamirande v. Resolution Trust

Corporation, 834 F. Supp. 526, 527-529 (D.N.H. 1993). More

recently, however, I have been persuaded to the contrary by "the

virtual consensus among the circuit courts addressing the issue."

Miller v. CBC Companies, Inc., 908 F. Supp. 1054, 1065 (D.N.H.

1995). It follows that the defendant Beaudoin is entitled to the

dismissal of the Title VII claim against him.

Next, defendant seeks judgment on Schoepfer's "vicarious

5 liability" claims against UNH on grounds that an employer may

never be vicariously liable for the intentionally tortious

conduct of an employee because intentional torts are outside the

scope of employment. This sweeping generalization flies in the

face of clearly established common law principles expressed by

the R estatement (S e c o n d ) o f A g e n c y § 231 (1958) which states that:

"[a]n act may be within the scope of employment although

consciously criminal or tortious." Such common law principles

have been relied on in formulating employer liability rules for

federal statutes such as Title VII. Meritor Savings Bank v.

Vinson, 477 U.S. 57, 70 (1986). Thus, courts have held that

employers may be held liable under Title VII on a theory of

respondeat superior for the sexual harassment perpetrated by a

supervisor, Torres v. Pisano, 116 F.3d 625, 634 (2d Cir. 1997),

which clearly undercuts defendants' claim that an employer can

never be liable for the intentional torts of an employee. Thus,

the court rejects UNH's argument that it cannot be held

vicariously liable for the intentional torts of its employees.

Conclusion

For the reasons outlined, the court herewith denies such

portions of the motion as seek to dismiss the plaintiff's Title

IX claims and her claim grounded on "vicarious liability." The

6 court grants the motion to dismiss as to the individual liability

claim against the defendant Beaudoin.

SO ORDERED.

Shane Devine Senior Judge

March 4, 1998

cc: John M. Lewis, Esguire Martha V. Gordon, Esguire