JOLEEN MORRISON & another [Note 1] vs. NORTHERN ESSEX COMMUNITY COLLEGE.

DUFFLY, J. Two female athletes, claiming to have been harassed by their basketball coach, Marshall Hess, while they were students attending Northern Essex Community College (college), brought a complaint on October 9, 1996, for monetary damages in Superior Court asserting that the college [Note 2] violated G. L. c. 151C, §§ 1(e), 2(g), inserted by St. 1986, c. 588, §§ 4, 5, by committing an unfair educational practice, and § 901(a) of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681(a) (2000) (Title IX), by perpetuating a hostile educational environment arising from sexual harassment.

A Superior Court judge entered summary judgment for the college, [Note 3] concluding that the action was barred by the applicable statute of limitations, which he determined to be three years. [Note 4] The plaintiffs appeal from the judgment dismissing their claims.

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LEGAL FRAMEWORK

Under G. L. c. 151C, § 2(g), it is an unfair educational practice "[t]o sexually harass students in any program or course of study in any educational institution." Section 1(e) of c. 151C defines sexual harassment as encompassing the following:

"any sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature when: -- (i) submission to or rejection of such advances, requests or conduct is made either explicitly or implicitly a term or condition of the provision of the benefits, privileges or placement services or as a basis for the evaluation of academic achievement; or (ii) such advances, requests or conduct have the purpose or effect of unreasonably interfering with an individual's education by creating an intimidating, hostile, humiliating or sexually offensive educational environment."

Violations of c. 151C are actionable in Superior Court. G. L. c. 214, § 1C. [Note 5], [Note 6]

Title IX provides in relevant part that "no person . . . shall, on the basis of sex, be excluded from participation in, be denied

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the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." [Note 7] 20 U.S.C. § 1681(a) (2000). Sexual harassment can constitute sex discrimination under Title IX. [Note 8] Franklin v. Gwinnett County Pub. Schs., 503 U.S. 60, 75 (1992). Title IX is enforceable, in State or Federal court, [Note 9] through an implied right of action for monetary damages. Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 281 (1998).

FACTS

We describe relevant facts contained in the summary judgment record in the light most favorable to the nonmoving party. Graham v. Quincy Food Serv. Employees Assn. & Hosp. Library & Pub. Employees Union, 407 Mass. 601, 603 (1990).

1. Notice of incidents in the 1980's. As early as the 1979-1980 academic year, administrators at the college, including its president, John Dimitry, were informed that the school's athletic director and coach, Marshall Hess, gave liquor to underage students and asked female students for sexual favors. A 1984

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complaint about Hess prompted the college to formulate policies and procedures to deal with sexual harassment on the college campus. A committee, the "Sexual Harassment Resource Group," was established, and a faculty member, Paula Strangie, was named its contact person. Despite a series of claims that Hess had sexually harassed female athletes, no official action was taken by college administrators until 1987, when Strangie investigated a female athlete's complaint against Hess and reported the results to Dimitry and other college administrators.

In response, the college conducted a further investigation that uncovered the same or similar accusations about Hess as that reported by Strangie. Those allegations included the following: female athletes had been made to feel beholden to Hess for getting them scholarships or playing time; Hess had, during walks or lunches with female students, encouraged them to confide in him about intimate details of their lives, their relationships with boyfriends, and whether or not they had had abortions; he made liquor available to female students, some under the legal age for drinking alcohol; he pulled down their shorts, patted bottoms, and undid bra straps; he walked in on female students in the bathroom in his house; he had them drink liquor out of his mouth; he kissed them; he engaged in sexual intercourse with female students during the frequent trips he organized; and he discussed his vasectomy and made "dirty vasectomy jokes." Women athletes left the team, stopped attending classes, or withdrew from the college in order to avoid continued contact with Hess. Some former students agreed that they would testify about their experiences with Hess. Others declined to testify or provide the names of students who had confided that they had been sexually intimate with Hess, stating either that they believed the relationships to have been consensual or that they were intimidated -- Hess had threatened to reveal pictures in which female students appeared naked, apparently taken while they were drunk.

The report resulted in an agreement between Hess and the college that was signed by Hess on March 29, 1988, and by Dimitry

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on April 8, 1988. [Note 10] The agreement stipulated that Hess could "not act as coach for any female athletic teams at the College for the remainder of his employment at the College." [Note 11]

Hess did not coach any female athletic team for the next two and one-half years. In the fall of 1991, the agreement was modified twice: first, to allow Hess to participate in field trips involving female students; and second, following the unexpected resignation of a coach, to permit Hess to function as head coach of the women's basketball team "for the balance of the 1991/1992 season only." Although no further modifications were made to the agreement, [Note 12] Hess continued to coach women's basketball until he was suspended in August, 1994, following the investigation of complaints by the plaintiffs and a third student that he had sexually harassed them. [Note 13]

2. Conduct directed at the plaintiffs. a. Morrison. Morrison was nineteen years old when she first attended the college in the fall of 1992 and tried out for the women's basketball team. Hess coached the team, and she saw him daily at the gym in connection with her work-study assignment for Hess and on walks they took together. Conversations with Hess were replete with sexual innuendo: he asked Morrison for details about her sex life, a miscarriage, and whether she had had orgasms. Hess

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would ignore or make fun of Morrison if she failed to respond to his comments.

Hess owned a condominium near the college that he rented to the assistant basketball coach, Donna Johnson, who allowed team members to use her home to relax or have lunch. Sometimes Hess would be there. In February, 1993, Morrison agreed to have lunch with Hess at Johnson's home but, upon arriving, was surprised to find that no one else was there. Morrison massaged Hess's back and legs when he asked her to (he often asked her for massages) but stopped when he asked her to rub his buttocks. Saying it was her turn, Hess untucked Morrison's shirt, undid her bra, and began to massage her back. He then reached around and grabbed her breasts and began to massage them. At the same time, someone drove up, and Hess told Morrison to go to the bathroom and put her bra on. Hess then came to the bathroom door, asked if she had gotten her bra back on, and said, "They seem really big, maybe next time I can see them."

Morrison tried to avoid Hess after that. When he saw her, he made jokes about her breasts. He also told her that, if she had not had an orgasm yet, he would give her one. The comments made her feel "dirty, like it was [her] fault." In May, 1993, Hess bet Morrison that she could not "go all summer without getting it . . . . I bet you lunch when you get back you probably got laid in Dallas." During the first weeks of the 1993 fall semester, Hess asked Morrison if he had won the bet and if Morrison was buying him lunch. A week or two later, during the first or second week of October, 1993, Hess and Morrison had a second conversation during which he asked when she was buying him lunch because he knew that he had won the bet. Thereafter, Morrison avoided conversation with Hess, but when she ran into him, he would ask "when was lunch." Hess's comments made Morrison feel threatened, confused, and pressured.

Morrison did not play basketball during the 1993-1994 season. An excellent softball player, she joined the softball team for the 1994 spring season. Her softball coach was Johnson (who rented Hess's condominium). Whenever Hess appeared at a softball game, Johnson pulled Morrison from the game for no apparent reason. During one home game, Morrison was playing

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in the outfield in the second or third inning when Hess appeared. Morrison saw him speak to Johnson, who then pulled Morrison out of the rest of the game.

Sometime in early 1994, Morrison spoke to the college sexual harassment counselor about what had occurred, and thereafter, in February, 1994, she complained to Stephen Fabrucci, the associate dean. She left the college in May, 1994, before completing her degree. Hess's conduct adversely affected Morrison's relationships with other people, particularly male authority figures. She felt ashamed and depressed, and as a result, engaged in treatment with a counselor. On October 9, 1996, Morrison and Santiago filed their complaint.

b. Santiago. Santiago arrived at the college in the spring of 1992, but was ineligible to play basketball until the fall. After joining the women's basketball team in the fall of 1992, Hess took Santiago on walks, asking that she tell no one because of what people might say. The conversations grew increasingly personal: he asked questions about her sex life and made fun of her when she referred to sex as "it." Uncomfortable, Santiago began to avoid Hess. Hess was persistent in asking Santiago to find time to go on walks with him. He also told her that he had asked Johnson to invite her to go drinking with them since he couldn't invite her himself because she was only nineteen. He said that he was not trying to "hit on her" and that if he wanted to "fuck" anyone on the team "it would be [another student]."

In late November, 1992, Hess confronted Santiago and asked if she was trying to avoid him. She agreed to have lunch with him and, at Hess's invitation, got into his van. During the drive Hess turned the conversation to movie sex scenes, asked if she had ever had an orgasm, and laughed when Santiago, embarrassed, looked out the window. Hess stopped and bought sandwiches and beer, then continued on, eventually stopping at a condominium complex that Santiago did not recognize. She asked what they were doing there, and Hess said that it was someplace to eat, and that it belonged to him and his wife. Santiago felt frightened but tried to reassure herself. Once inside, she sat on the couch while Hess sat on a bed in the room. They drank beer, and he brought out a bottle of champagne. Hess, now lying on the bed, said, "I want a massage but don't worry,

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we don't have to do it. I just want it in your underwear." When Santiago said she did not give massages, Hess told her about another student who had regretted having rejected him. Santiago responded that it "must have been a long time ago," and Hess became insulted, saying she was rejecting him because he was fat. Worried that he might rape or harm her, Santiago was relieved when Hess agreed to take her back to the college.

Thereafter, whenever Hess saw Santiago he alluded to the condominium incident -- he would look at her and wink or smirk as he made comments about his weight or efforts to lose weight, or while patting his stomach. Hess began to ridicule her publicly and made comments about her being "lower class."

During the next basketball season, Hess benched Santiago, a team captain, for increasingly longer periods and often yelled at her. On February 5, 1994, he called her to the middle of the gym floor during pregame warm-up. In front of both teams, he told her that he knew she was not getting playing time, that it was his decision, and that, if she did not like it, she could turn in her uniform. He repeated this twice, until she left the gym and quit the team.

Later in February, Santiago complained to Fabrucci that Hess had sexually harassed her. Thereafter, when she encountered Hess alone, he would walk close to her and snicker in a way she experienced as intimidating. He continued making nearly daily suggestive references to his weight until Santiago transferred from the college in May, 1994. As a result of her encounters with Hess, Santiago felt depressed and helpless, blamed herself, and sought counseling. Her relationships with other people were affected, and she experienced flashbacks that left her feeling sad, disgusted, and emotional.

In August, 1994, six months after the plaintiffs complained, the college took steps to suspend Hess. As we have indicated, the plaintiffs filed their complaint in Superior Court on October 9, 1996.

DISCUSSION

1. Statute of limitations. Whether a sexual harassment claim brought under G. L. c. 151C or Title IX is barred by the statute of limitations depends on the claim and on the nature of the violative

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conduct -- that is, whether the conduct consisted of a "discrete act" or was a "continuing violation." [Note 14] We address the plaintiffs' alternative arguments: that the acts complained of amounted to serial continuing violations, all of which are actionable because the last occurred within the statute of limitations; or, if we conclude that there was no continuing violation, that there was independently actionable conduct that fell within the three-year limitations period. See note 4, supra.

Statute of limitations principles in an employment discrimination context, recently articulated by the United States Supreme Court in National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002) (discussing Title VII [Note 15]), and previously adopted by the Supreme Judicial Court in Cuddyer v. Stop & Shop Supermarket Co., 434 Mass. 521 (2001) (discussing G. L. c. 151B), are analogous to claims of sexual harassment in an educational setting. See Legoff v. Trustees of Brown Univ., 23 F. Supp. 2d 120, 126 (1998) ("In interpreting Title IX, courts apply the legal principles elaborated under Title VII"). These two cases indicate that the Massachusetts and Federal courts interpret continuing violations of the serial kind in the same manner. [Note 16]

a. Discrete acts: General Laws c. 151C. The plaintiffs' claims

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of "quid pro quo" harassment, see Beaupre v. Smith & Assocs., 50 Mass. App. Ct. 480, 488 (2000); G. L. c. 151C, § 1(e)(i), encompass discrete conduct within the limitations period that establishes a violation under the definition of sexual harassment set forth in c. 151C, § 1(e)(i), namely, that submission to Hess's advances was a condition of continued participation on a college sports team. Cf. Beaupre v. Smith & Assocs., supra at 481 n.4, 488. The violation occurred when it became apparent that submission was the "quid pro quo" of continued participation on a sports team. In the light most favorable to the plaintiffs, that occurred when Hess, responding to the rejection of his advances, caused his assistant coach to pull Morrison from softball games early in the spring of 1994 and forced Santiago's resignation from the basketball team in February, 1994. Cf. National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002). "Discrete acts such as termination, failure to promote, denial of transfer, or refusal to hire are easy to identify. Each incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable 'unlawful employment practice.'. . .[O]nly incidents that took place within the timely filing period are actionable." Id. at 114.

These acts (when Morrison was precluded from participating fully on the softball team and Santiago was forced to resign from the basketball team) constituted discrete, independently actionable violations of c. 151C, § 1(e) (i), and the limitations period began to run from the date of each act (with respect to Morrison's claim, in the spring of 1994, and with respect to Santiago's claim, in February, 1994). See, e.g., Davis v. Sears, Roebuck & Co., 708 F.2d 862, 865 (1st Cir. 1983) (limitations period begins to run on date of notice of discriminatory dismissal); Davis v. Lucent Technologies, Inc., 251 F.3d 227, 231 (1st Cir. 2001) (MCAD complaint should have been filed

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within six months of date of termination to be timely). Because both events took place within the three-year period preceding the filing of the complaint on October 9, 1996, each plaintiff's claim of quid pro quo harassment was timely filed. [Note 17]

b. Continuing violations (serial): General Laws c. 151C. The facts we have described establish continuing violations that support the plaintiffs' hostile educational environment claims, viable under G. L. c. 151C, § 1(e)(ii), as well as Title IX. Hostile educational environment claims generally involve continuing violations that "are different in kind from discrete acts. Their very nature involves repeated conduct. . . . The 'unlawful [educational] practice' therefore cannot be said to occur on any particular day. It occurs over a series of days or perhaps years and, in direct contrast to discrete acts, a single act of harassment may not be actionable on its own." National R.R. Passenger Corp. v. Morgan, 536 U.S. at 115.

With respect to the hostile educational environment claim under c. 151C, § 1(e) (ii), a jury could conclude that Hess's conduct was experienced by each plaintiff as humiliating and degrading (and would be so experienced by a reasonable person) and was sufficiently pervasive to constitute a hostile educational

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environment constituting a violation of c. 151C, § 1(e) (ii). [Note 18] "[A student] who suffers from recurring acts of abusive sexual verbal or physical conduct that, over time, rise to the level of a hostile [educational] environment, may be unable to appreciate the true character and enormity of the discriminatory environment until after it has continued for an appreciable length of time. A hostile [educational] environment constitutes a pattern of sexual harassment . . . that, by its very nature, often is apparent only in hindsight." Cuddyer v. Stop & Shop Supermarket Co., 434 Mass. at 538 (emphasis original). [Note 19]

In Cuddyer, the plaintiff brought a hostile work environment action under G. L. c. 151B, claiming that she had been sexually harassed by several of her coworkers over a nearly twenty-year period. The court specifically addressed whether "the plaintiff's awareness that she was being sexually harassed by incidents occurring [outside of the applicable limitations period], bars her from asserting a substantive claim in court based on those incidents," id. at 530, concluding that it did not.

We think the principles applicable to limitations issues set forth in Cuddyer as to a hostile work environment are applicable with equal force in the context of claims of a hostile

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educational environment brought under c. 151C. These principles are as follows:

"[A] plaintiff who demonstrates a pattern of sexual harassment that creates a hostile [educational] environment and that includes conduct within the [three-year] statute of limitations, may claim the benefit of the continuing violation doctrine and seek damages for conduct that occurred outside the limitations period . . . ."

Id. at 539.

Because the creation of a hostile educational environment may occur through accretion of sexually offensive behavior over time, the most recent incident of conduct (conduct that need not itself be independently actionable) anchors prior, related events for purposes of determining whether the statute of limitations bars suit even though a large portion of the discriminatory conduct may have taken place more than three years prior to the complaint. Cf. Cuddyer v. Stop & Shop Supermarket Co., 434 Mass. at 532-533 (plaintiff must show, within limitations period, "the existence of at least one incident of sexual conduct which, standing alone might not necessarily support her claim, but which substantially relates to earlier incidents of abuse, and substantially contributes to the continuation of a hostile work environment, such that the incident anchors all related incidents, thereby making the entirety of the claim for discriminatory conduct timely").

We conclude that for purposes of summary judgment, each plaintiff has raised a genuine issue of material fact regarding whether there was at least one incident of sexual conduct within the limitations period that was substantially related to earlier events. In response, the defendant may show that "the plaintiff knew or reasonably should have known that her [educational] situation was pervasively hostile and unlikely to improve, and, thus, a reasonable person in her position would have filed a complaint . . . before the statute ran on that conduct." Id. at 539. Whether such circumstances faced Morrison or Santiago does not appear on this record but may, on appropriate evidence, be presented to the jury.

c. Title IX claims. The question of the timeliness of the

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plaintiffs' Title IX claims is governed by interpretations of Federal courts. See Perez v. Laredo Jr. College, 706 F.2d 731, 733 (5th Cir. 1983) (Federal law determines when civil rights action "begins to run"). The determination of whether a hostile environment exists under Title IX, as drawn from analogous principles regarding Title VII, requires an examination of " 'all the circumstances,' including the 'frequency of the [sexually offensive] conduct; its severity; whether it is [intimidating,] physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with a [student's educational program or] performance.' [Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993).] 'Subject to some policing at the outer bounds,' it is for the jury to weigh those factors and decide whether the harassment was of a kind or to a degree that a reasonable person would have felt that it affected the conditions of her [education]." Marrero v. Goya of P.R., 304 F.3d 7, 18-19 (1st Cir. 2002), quoting from Gorski v. N.H. Dept. of Corrections, 290 F.3d 466, 474 (1st Cir. 2002).

With respect to statute of limitations questions, the Supreme Court has held that because a hostile environment claim "is comprised of a series of separate acts that collectively constitute one 'unlawful [educational] practice,'. . . it does not matter . . . that some of the component acts of the hostile [educational] environment fall outside the statutory time period. Provided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purposes of determining liability." National R.R. Passenger Corp. v. Morgan, 536 U.S. at 117. Relying on the foregoing principles and our preceding discussion, we conclude that the plaintiffs' claims under Title IX were likewise timely filed.

2. Deliberate indifference. In Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. at 290, the Supreme Court stated that to recover compensatory damages under Title IX for sexual harassment, a plaintiff must show that "an official who at a minimum has authority to address the alleged discrimination and to institute corrective measures on the recipient's behalf has actual knowledge of the discrimination . . . and fails adequately to respond. . . . [T]he response must amount to deliberate indifference

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to discrimination." Construing deliberate indifference, the First Circuit has stated that "[i]f the institution makes timely and reasonable measures to end the harassment, it is not liable under Title IX for prior harassment." Wills v. Brown Univ., 184 F.3d 20, 26 (1st Cir. 1999). Compare Franklin v. Gwinnett County Pub. Schs., 503 U.S. 60 (1992).

The college contends that it did not have notice of Hess's harassment of the plaintiffs until they complained to Fabrucci in February, 1994, thereby precluding recovery under Title IX. It further argues that, even if it was on notice by virtue of having previously been informed that Hess sexually harassed other women at the college during a period spanning nearly two decades, recovery would be precluded because it cannot be said, as matter of law, that the college acted with deliberate indifference. To support this argument, the college points to the fact that, in 1988, it barred Hess from coaching women students and only allowed him to resume coaching in 1991 after having received no further complaints of sexual harassment (during the period he was barred from contact with them).

As to the first prong of its argument, there is evidence in the record from which a fact finder could conclude that top administrators at the college, including its president, had actual knowledge, beginning at least in 1980 and certainly by 1987, that Hess was a sexual predator whose presence on campus posed a serious threat to the well-being of female student athletes. The college provides no citation to any Federal authority, and we have found none, supporting its position that knowledge of acts of sexual harassment against students other than the plaintiff would be insufficient to put the college on notice that Hess would sexually abuse other students, including the plaintiffs. Gebser itself does not mandate that notice be of acts against a plaintiff, but only that a recipient school have "actual knowledge of discrimination in the recipient's programs." Gebser v. Lago Vista Ind. Sch. Dist., 524 U.S. at 290. The focus is on institutional wrongdoing that derives from a knowing failure to respond to discrimination in its programs. As in the circumstances of this case, such knowledge could derive from having learned that an individual had previously harassed other students. See Wills v. Brown Univ., 184 F.3d

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at 27 (recognizing that key evidence supporting a claim of deliberate indifference was what university knew and did in response to a prior complaint from a student other than plaintiff). The plaintiffs have raised a genuine issue of material fact as to whether the college acted with deliberate indifference. See Massey v. Akron City Bd. of Educ., 82 F. Supp. 2d 735, 745 (N.D. Ohio 2000) (where the board of education received notice of offender's proclivities long before the incidents with the plaintiff occurred, there was a genuine issue whether board had actual knowledge of wrongful conduct and was indifferent to it). Cf. Doe v. Special Sch. Dist. of St. Louis County, 901 F.2d 642 (8th Cir. 1990).

Whether the college responded reasonably, or with indifference, to the knowledge of Hess's conduct will depend on the circumstances known to the college at the time. Also relevant is whether the decision to allow Hess to resume coaching was reasonable under the circumstances. These are issues which, on this record, cannot be resolved as matter of law but are better left to a jury.

CONCLUSION

We vacate the grant of summary judgment for the defendant with respect to claimed violations of G. L. c. 151C, § 1, and Title IX and remand the case to Superior Court for further proceedings consistent with this opinion.

So ordered.