They're At It Again: Familiar Fourth Circuit Line-Up Prematurely Squelches Discrimination Claim

Last Tuesday, only weeks after they unjustifiably stood in the way of over a million African Americans seeking to remedy decades of racial injustice (see here), Fourth Circuit Judge Karen Williams and District Court Judge James Dever (sitting by designation) joined in a split, 2-1 decision to throw out a claim of pervasive coach-on-player sexual harassment without giving the aggrieved college student a chance to take her case to a jury. Williams, often rumored to be on the Bush II Supreme Court “short list,” was appointed by Bush I; Dever, by Bush II.

On an almost daily basis, Anson Dorrance, coach of the University of North Carolina’s women’s soccer team, asked a different player – in front of the rest of the team – “’Who [her] fuck of the minute is, fuck of the hour is, fuck of the week [is],’ whether there was a ‘guy [she] ha[dn’t] fucked yet,’ and whether she ‘got the guys’ names as they came to the door or whether she just took a number.’” He routinely commented on players’ “nice legs,” “nice racks” and “breasts bouncing.” Among other things, Dorrance also asked one player if she “was going to have sex with the entire lacrosse team,” advised another to “keep [her] knees together; you can’t make it too easy for them,” inquired of another whether she was going to have a “shag fest” with her boyfriend, and told the trainer within earshot of team members that he fantasized about having “an Asian threesome” with his Asian players. Because Dorrance was the most successful coach on the most successful women’s soccer team in college history, the power he implicitly wielded over his players to stifle protest against his behavior was “tremendous.” He “controlled everything,” observed dissenting Judge Blaine Michael.

Dorrance’s sexually explicit comments brought some teammates to tears, left others disgusted and made Melissa Jennings, one of two plaintiffs (the other – a team captain – settled), feel “uncomfortable, filthy and humiliated,” not to mention anxious about the possibility Dorrance would directly target her. Which, ultimately, he did. “I was 17,” Ms. Jennings recalled, “when he asked me [“Who are you fucking?”] in a dark hotel room, knee-to-knee….” By this time, Ms. Jennings had already reported her discomfort with Dorrance’s behavior to a school official, but the official took no action and instructed her to “work it out” with Dorrance.

In throwing out the case, Judges Dever and Williams downplayed Ms. Jennings’ claims as encompassing merely “sexual banter,” “vulgar language” and “second-hand harassment” insufficient to amount to unlawful discrimination. In dissent, Judge Michael took issue with that assessment, expressly criticizing the majority for subverting the well-established rule that requires courts to consider the facts in the light most favorable to the alleged victim when deciding whether to preempt a trial:

Melissa Jennings’s account must be taken as true: when she was seventeen … her forty-five-year-old male coach … persistently and openly discussed and pried into the sex lives of his players, using what he learned to degrade and humiliate them. The University … knew about Dorrance’s conduct and failed to take prompt action to stop it …. [A] thorough examination of the facts, viewed in the light most favorable to Jennings, reveals that the majority has failed to appreciate the force of her case. Because Jennings has proffered facts showing that the soccer team environment was persistently degrading and humiliating to her and to other young women, she is entitled to a trial.

The opinion of Judges Dever and Williams bears an eerie resemblance to Judge Williams’ repudiated ruling in another harassment case, Ocheltree v. Scollon Products, featured in a New York Times Magazine article on the Fourth Circuit’s strident conservatism. There, in a split 2-1 decision, Judge Williams overturned a jury verdict in favor of a female worker whose male co-workers repeatedly engaged in overt, sexually explicit conversation, joking and singing, some of it directed at her. As in last week’s decision, Judge Williams didn’t think the misconduct was serious enough to violate the law. Similarly downplaying the evidence of harassment, she complained that the victim was not the “model of femininity” and that finding in her favor would transform anti-discrimination laws “into a neo-Victorian chivalry code designed to protect [the] tender sensitivities of contemporary women.” The full Fourth Circuit, however, begged to differ. On further review, 10 of the court’s other 11 judges – including even the judge who originally voted with her on the three-judge panel – reinstated the verdict, flatly rejecting Judge Williams’ effort to substitute her own judgment for the jury’s.

If the Fourth Circuit’s rebuke in Ocheltree was intended to send a message, apparently it fell on deaf ears. As a result, Melissa Jennings is left without a remedy.

Note: It’s particularly interesting that, though they discounted the severity of the intrusive sexual profanities Melissa Jennings was forced to deal with, Judges Dever and Williams chose to use asterisks when quoting Coach Dorrance’s language. Too harsh to be read, but not harsh enough to have a serious real world impact? Who said the dry world of judicial opinions never made for a little irony?

Jennings v. University of North Carolina, 4th Cir. No. 04-2447 (April 11, 2006).