Fox v. Pittsburg State University (257 F. Supp. 3d 1112, 2017)

MEMORANDUM AND ORDER

JULIE A. ROBINSON, UNITED STATES DISTRICT JUDGE

A jury rendered a verdict in favor of Plaintiff Martha Fox on claims for damages arising under Title VII and Title IX against Defendant Pittsburg State University (“PSU”), and the Court entered judgment on the verdict. The parties have now filed post-trial motions. The motions are fully briefed and the Court is prepared to rule. For the reasons explained more fully below, the Court denies Defendants Motion for Renewed Judgment as a Matter of Law as to the Title IX Claim (Doc. 207) and denies Defendant’s Motion for Renewed Judgment as a Matter of Law as to the Title VII Claim (Doc. 209). The Court also denies Defendant PSU’s Motion For New Trial or in the Alternative for Remit-titur (Doc. 214).

Notably, Defendant improperly filed separate motions for judgment as a matter of law as to each claim, effectively circumventing the page limitations. It is not in compliance with the Federal Rules of Civil Procedure or the local rules, which contemplate one filing for all claims. Defendant should have filed one motion for judgment as a matter of law as to both claims and requested leave to extend the page limitation if necessary. The Court deliberated about whether to strike the motions, but ultimately decided to consider both. Defendant was represented by experienced counsel, Ms. Casement and Ms. Wil-loughby, who undoubtedly knew this was a violation of the local rule and that it would create an excessive amount of work for Plaintiffs counsel as well as this Court. In fact, Defendant has single-handedly multiplied the briefing, advanced an inordinate number of arguments, many of which are without merit, and seeded its briefing with vexatious, inappropriate, uncivil and unprofessional language, as will be detailed in the Court’s order on Plaintiffs attorney fees and expenses. None of Defendant’s tactics is well received by the Coupt.

1. Background

This matter arose out of Plaintiffs employment as a custodian at PSU between July 2010 and November 2015. Plaintiff contends that she was subjected to sexual harassment from April 2012 to March 2014 by Custodial Supervisor Jana Giles and custodian Cathy Butler Brown. Plaintiff complained to members of the custodial management, including Wanda Endicott and Kevin Malle, but nothing was done to stop or deter the conduct.

In February 2014, Plaintiff complained about the ongoing sexual harassment to Cindy Johnson, PSU’s Director of Equal Opportunity and Affirmative Action. Plaintiff alleges Defendant failed to properly investigate the complaints in that Johnson refused to interview witnesses. Johnson told Plaintiff that she would not investigate Plaintiffs complaints because Johnson feared it would start a “firestorm.” Plaintiff alleges that she did not receive sexual harassment training until after the alleged harassment took place. Plaintiff also alleges she suffered emotional distress damages as a result of the sexual harassment she endured.

Defendant filed a motion for summary judgment on the Title IX and Title VII sexual harassment and retaliation claims. The Court denied summary judgment on the Title IX and Title VII hostile work environment sexual harassment claims, but granted summary judgment on the Title VII and Title IX retaliation claims. The case proceeded to a jury trial on October 3, 2016 on the remaining claims. The jury returned a verdict in favor of Plaintiff on both claims, awarding damages of $100,000 on the Title IX claim, and $130,000 on the Title VII claim. The Court denied Defendant’s oral and written motions under Federal Rule of Civil Procedure 50(a) for judgment as a matter of law, and entered judgment on the verdict in favor of Plaintiff and against Defendant.

II. Motion for Judgment as a Matter of Law

A. Standard

A district court may grant a motion for judgment as a matter of law under Rule 50 if it “finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on [the] issue.” The standard is met only when “the proof is all one way or so overwhelmingly preponderant in favor of the movant as to permit no other rational conclusion.” In determining whether judgment as a matter of law is proper, a court may not weigh the evidence, consider the credibility of witnesses, or substitute its judgment for that of the jury. In other words, the Court must affirm a jury verdict if, viewing the record in the light most favorable to the nonmovant, the record contains evidence upon which the jury could properly return a verdict for the nonmovant. Judgment as a matter of law is appropriate “[i]f there is no legally sufficient evidentiary basis ... with respect to a claim or defense ... under the controlling law.”

B. Discussion

The Court addresses the motions for judgment on the Title IX and Title VII claims separately, as the parties have done in the briefing.

1. Title IX Claim

Defendant moves for judgment as a matter of law on the Title IX claim for four reasons — (1) Plaintiff does not have a private right of action .under Title IX .as a custodian; (2) Defendant is immune from Plaintiffs Title IX claim; (3) Plaintiff failed to meet the standard for damages under Title IX; and (4) Plaintiff provided insufficient evidence of actual notice to the proper authority. Inexplicably, Defendant did not raise the first two grounds in its summary judgment motion, but argues that because these are jurisdictional issues, they can be raised at any time. Each argument will be addressed in turn.

a. Private Right of Action

Plaintiff invoked both Title VII and Title IX at trial to seek relief for the hostile work environment sexual harassment-she faced based on her sex. Defendant argues that Title IX does not grant a private right of action to a custodial employee. This argument is twofold. First, Defendant argues that Title IX is “preempted” in the context of employee-on-employee sexual harassment by Title VIL Second, even if Title VII does not displace relief under Title IX, there is no implied private right of action for employee-on-employee sexual harassment where, as here, the employee does not have any relation to an educational program or activity.

i. Waiver

As to the “preemption” argument, Plaintiff argues this has been waived because it was not raised in the Rule 50(a) motion made at trial. Although inartfully drafted, the Court believes that Defendant’s response is that this is “jurisdictional” in nature, so it cannot be waived and may be raised at any time. The general rule is that “[a] party may not circumvent Rule 50(a) by raising for the first time in a post-trial motion issues not raised in- an earlier motion” for judgment as a matter- of law. However, under Federal Rule of Civil Procedure 12(h)(3), a party may raise a challenge to subject matter jurisdiction at any time. Given the complete lack of authority and the novelty of this issue, the Court will assume without deciding that “preemption” is “jurisdictional” and may be raised for the first time in a Rule 50(b) motion.

ii. Title VII Displacing Relief Under Title IX

The Court finds that eyen if Defendant’s argument that Title VII displaces Title IX has not been waived, it is without merit. The issue of whether Title VII displaces relief under Title IX to recover damages for employment discrimination is unsettled. The parties do not cite nor is the Court aware of Tenth Circuit precedent addressing whether Title VII displaces Title IX in the employment discrimination context. But there is a split of authority among other circuits that have addressed the issue of whether a Title VII claim displaces relief under Title IX. As explained in more detail below, this Court finds more persuasive the reasoning of those circuit courts that have held that Title VII does not displace Title IX.

There are six Supreme Court decisions guiding this Court’s conclusion that Title VII does not displace Title IX. Most relevant to this case, in Jackson v. Birmingham Board of Education, a high school employee was relieved of his coaching position when he complained of disparate treatment of the girls’ basketball team. The Supreme Court recognized an employee’s private right of action for retaliation under Title IX despite no express prohibition in the statute because if the funding recipient were “permitted to retaliate freely,” “individuals” who witness sex discrimination would be “loath to report it” and “all manner of Title IX violations might go unremedied.” Though not explicitly addressed, the Supreme Court did not indicate that Title VII displaced relief under Title IX. Rather, the Supreme Court recognized “Title VII is a vastly different statute,” as it distinguished Title IX’s “broadly written general prohibition on discrimination” with Title VU’s “greater detail [with respect to] the conduct that constitutes discrimination.”

The circuits have split on whether Title VII is intended to displace Title IX for claims against schools in the employment discrimination context. In Lakoski v. James, the Fifth Circuit held that Title VII displaces Title IX because allowing Title IX employment discrimination claims to proceed without satisfying Title VU’s exhaustion requirements would upset Congress’s remedial scheme for redressing employment discrimination. In Lakoski, the plaintiff, a former professor denied tenure, argued that based on Cannon, North Haven, and Franklin, there was an implied right of action under Title IX for employment discrimination, The Fifth Circuit disagreed with this “jurisprudential arithmetic,” distinguishing Cannon and Franklin as related to claims of prospective or current students, and North Haven as unrelated to the validity Title VII. In reaching its conclusion, the Fifth Circuit observed that “Congress enacted Title IX only months after extending Title VII to state and local governmental employees,” and remarked “[t]hat Congress intend[ing] to create a bypass of Title VII’s administrative procedures so soon after its extension to state and local employees is an extraordinary proposition.” Thus, the Fifth Circuit refused to do “violence to the congressionally mandated procedures for Title VII,” and held it was error to submit Plaintiff’s Title IX claim to the jury. The Seventh Circuit has held similarly. But both opinions pre-dated Jackson.

By contrast, the Fourth Circuit in Preston v. Commonwealth of Virginia ex rel. New River Community College held that retaliatory employment discrimination may be sought under Title IX and Title VII. The Fourth Circuit reasoned Title VII and its judicial interpretations provide a persuasive body of standards to which courts may look in shaping contours of private rights of action under Title IX. Thus, the Fourth Circuit concluded that “[a]n implied private right of action exists for enforcement of Title IX ... [which] extends to employment discrimination on the basis of gender by educational institutions receiving federal funds.” The Sixth Circuit and the First Circuit have held similarly.

In March 2017, in Doe v. Mercy Catholic Medical Center, the Third Circuit held that Title IX and Title VII had concurrent applicability and that Title VII does not displace Title IX employment discrimination claims. The Third Circuit-looked to the six Supreme Court decisions discussed above to guide its decision. From these six decisions, it derived four guiding principles, One, private-sector employees are not limited to Title VII in their search for relief from workplace discrimination, Two, it is a-matter of policy left for Congress’s constitutional purview whether an alternative avenue of relief from employment discrimination might undesirably allow circumvention of Title VIPs administrative requirements. Three, the' provision implying Title IX’s private cause of action, 20 U.S.C. § 1681(a), encompasses employees, not just students. Four, Title IX’s implied private cause of action extends to employees of federally funded education programs who allege sex-based retaliation claims under Title IX, and no subsequent decision of the Supreme Court has narrowed this principle. The Fourth Circuit declined to follow the Fifth and Sixth Circuit decisions because they “did not address the Supreme Court’s decisions in Johnson and Brown and the provisions of North Haven rejecting ‘policy’-based rationales” and “were decided a decade before the Supreme Court handed down Jackson, which explicitly recognized an employee’s private claim under Cannon.” Thus, the plaintiff was entitled to relief under Title IX and Title VIL

This Court will follow the approach of the majority — the First, Third, Fourth, and Sixth Circuits — that Title VII and Title IX have concurrent applicability in employment discrimination claims. Reading.the six Supreme Court cases outlined above together, this Court is persuaded that there is a private right of action for employees of educational institutions receiving federal funding under both Title VII and Title IX. If Congress intended for Title VII to displace employment discrimination claims under Title IX, it could have drafted Title IX, which was enacted follomng Title VII, to state as much. Instead, Title IX broadly covers any “person,” not just students, alleging discrimination. The Supreme Court has already rejected the argument that Title VTI is the exclusive remedy for employment discrimination actions, so the argument that Title IX employment discrimination claims may circumvent the Title VII scheme is rejected. Further, while Title VII and Title IX are often called analogous or similar, the two statutes are not identical. The Court declines to infer any preference for recovery under Title VII without a more definite expression from Congress — for example, a provision in Title VII barring concurrent private Title IX claims. Accordingly, Title VII does not displace employment discrimination claims pursuant to Title IX.

This Court is further persuaded that this is the approach that would be taken by the Tenth Circuit given that the Tenth Circuit applies Title VII principles to Title IX employment discrimination actions. As the Tenth Circuit has noted, Title VII is “the most appropriate analogue when defining Title IX’s' substantive standards.” In fact, as recently as June 2017, the Tenth Circuit in Hiatt v. Colorado Seminary applied Title VII standards to hybrid Title VII and Title IX retaliation claims by a university faculty member.

Nothing leads this Court to believe that Title VII is meant to be the “exclusive” remedy for employment discrimination. Further, nothing leads this Court to believe that Title VII is meant to displace Title IX, as the Tenth Circuit has recognized that these causes of action are “analogous,” not identical. While the two statutes address similar conduct, there are still differences, including “targeting] different offenders, hav[ing] different statutes of limitations, and providing] some different remedies.” By recognizing that Title VII standards apply to Title IX employment claims, the Tenth Circuit has implicitly recognized that Title VII does not displace Title IX to address employment discrimination.

iii. Nexus to Educational Programs or Activities for Title IX

The Court next addresses Defendant’s alternative argument that Plaintiff must show her work has a “nexus” to education in order to qualify for Title IX’s remedies. Defendant argues that this “nexus” is a requirement for employment discrimination actions following the 1987 amendment to Title IX. The 1987 amendment to Title IX was in response to prior holdings of the Supreme Court limiting its reach to only programs that received federal funding. In 1982, in North Haven, the Supreme Court held that Title IX’s prohibition of sex discrimination of students and employees, but only employees who directly participated in federal programs or directly benefitted from federal grants, loans or contracts. The Supreme Court noted that Congress had not adopted a proposal that would have prohibited “all discriminatory practices of an institution” receiving federal funds. Further, in 1984, in Grove City College v. Bell, the Supreme Court interpreted Title IX’s phrase “education program or activity” to only apply to the particular programs receiving federal funding.

In response to these holdings narrowing the scope of Title IX protection, Congress enacted the Civil Rights Restoration Act of 1987. The amendment sought to clarify § 1681(a), which reads that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” The amendment to Title IX specified that the term “program” as used in § 1681 means “all of the operations of’ the institution that received federal funding, regardless of whether the specific program at issue benefitted from that funding. Indeed, the Senate Report addressing the Civil Rights Restoration Act of 1987 clarified that discrimination is “prohibited throughout entire agencies or institutions if any part receives Federal financial assistance,” and that “all of the operations of’ an educational institution or system would include, but is not limited to: “traditional educational operations, faculty and student housing, campus shuttle bus service, campus restaurants, the bookstore, and other commercial activities.” Overall, the amendment’s purpose was to reaffirm pre-Grove City College judicial and executive branch interpretations and enforcement practices which provided for “broad coverage” of the anti-discrimination provisions of these civil rights statutes.

The Court rejects Defendant’s argument that the 1987 amendment to Title IX only decided the issue of whether the institution as a whole is covered, and that a plaintiff still needs to show that her work had a “nexus” to educational programs or activities. Given Title IX’s broad language, this position simply does not comport with the plain language of the statute — u[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied' the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.” The Supreme Court has read “no person” broadly; as North Haven puts it so aptly,

“[bjecause § [1681(a) ] neither expressly nor impliedly excludes employees from its reach, we should interpret the provision as covering and protecting these ‘persons’ unless other considerations counsel to the contrary. After all, Congress easily could have substituted ‘student’ or ‘beneficiary1 for the word ‘person’ if it had wished to restrict fhe scope of § [1681(a)].”

Further, the requirement of a nexus to “education” is not consistent with Title IX’s broad purpose, which is “to avoid the use of federal resources to support discriminatory practices” and “provide individual citizens effective protection against those practices.” Particularly, with the first purpose in mind, this seems to be an institution-wide objective that is not limited narrowly to university educational initiatives, as these institutions as a whole receive federal funding.

Moreover, many of the cases Defendant cites for the proposition that Plaintiffs work must relate to an educational program or activity are no longer of continued validity in light of the 1987 amendment. Further, nothing in the language or legislative history of the 1987 amendment suggests that Congress intended to limit Title IX’s scope to only certain members of the university or intended to require a “nexus” to educational programs or activities. Rather, Congress intended for Title IX to broadly cover the entirety of the institution, including “campus shuttle bus service, campus' restaurants, the bookstore, and other commercial activities.” Indeed, the word “broad” :is used 35 times in the legislative history of the 1987 amendment alone.

Defendant also relies upon Preyer v. Darmouth, a post 1987 district court decision that entirely misreads the 1987 amendment. In Preyer, the court held that a college dining services employee could not maintain a sex discrimination under Title IX, because “in order to give effect to the word ‘education,’ the prohibition against sexual discrimination in § 1681(a) applies only to those operations of a college or university that are educational in nature or bear some relation to the educational goal of the institution.” But, the district court’s interpretation of the word “education” to only involve operations that are educational in nature contravenes Congressional intent that Title IX reach “traditional educational operations, faculty and student housing, campus shuttle bus service, campus restaurants, the bookstore, and other commercial activities.”

The Court further rejects Defendant’s suggestion that Congress intended for Title IX to distinguish the janitorial staff as any less a part of the university or deserving of protection than faculty. Defendant asks this Court to draw an arbitrary line that prohibits groundskeepers or maintenance workers from asserting Title IX claims but allows professors or teachers. Defendant ignores the fact that there are hundreds of different types of employees at a university or on a university campus, such as bus drivers, cafeteria workers, librarians, childcare workers, bookstore employees, docents at the university art museum, athletic directors, resident assistants at dorms, and student admissions recruiters. . Nothing Defendant cites persuades this Court that Title IX is meant to allow claims by some of these employees but not all. Title IX must be given “a sweep as broad as its language.”

Lastly, Defendant conflates the issue of whether Title IX requires that an employee have a “nexus”, to educational programs or activities and the issue of whether a student’s action under Title- IX requires a showing that there was a “systemic effect Of denying the victim equal access to an educational program or activity” under Davis v. Monroe County Board of Education. A student necessarily must show a “systemic effect of denying the victim equal access to an educational program or activity,” to demonstrate that gender-oriented conduct rises to the level of actionable harassment under Title IX. By Defendant’s own admission, this would be a separate inquiry from an inquiry into whether Plaintiffs work has a “nexus” to educational programs or activities.

In any event, Defendant’s argument is without merit. Defendant relies on cases that involve student sexual harassment under Title IX. But, as the Court explained above, the Tenth Circuit holds that Title VII standards apply to Title IX employment discrimination cases, and there is no indication that such a showing of systemic effect of denying access to educational programs or activities is required under Title VIL Indeed, such a requirement would render it impossible for teachers and other employees to get relief under Title IX although they are undoubtedly covered by Title IX given the Supreme Court’s holding in Jackson v. Birmingham Board of Education. Thus, the Court finds that Plaintiff need not make this showing.

b. Sovereign Immunity

Defendant also argues that it cannot be held liable for the Title IX claim because Congress did not intend to waive sovereign immunity of the states. Defendant contends that the state did not have “notice” of the particular type of lawsuit asserted here — “an implied right of action for money damages based on a claim of employment discrimination against a sovereign for alleged sexual harassment by a coworker” — when it accepted federal • funds more than five years ago. Defendant argues that without notice, the state has not expressly consented to be sued under these circumstances.

Plaintiff argues that Defendant has waived this argument because it was not made ih the Rule 50(a) motion. While a party must raise all issues in its Rule 50(a) motion that it wishes to dispute in its Rule 50(b) motion, the Court ágrees with Defendant that'jurisdictional arguments may be raised at any time. Because sovereign immunity is jurisdictional, it cannot be waived)

Although this argument has not been waived,s it is wholly .without merit. Pursuant to its power under section five of the Fourteenth Amendment, “Congress abrogated the States’ Eleventh Amendment immunity under Title IX.” This is codified at 42 U.S.C. § 2000d-7(a)(l), which provides that: “[a] State shall not be immune under the Eleventh Amendment of the Constitution of the United States from suit in Federal court for a violation of ... title IX of the Education Amendments of 1972.” It further provides in subsection (a)(2) that “[i]n a suit against a State for a violation of a statute [including Title IX], remedies (including remedies both at law and in equity) are available for such a violation to the same extent as such remedies are available for such a violation in the suit against any public or, private entity other than a State.” Because this Court has found that Plaintiff may properly bring a private right of action for employ-mént discrimination under Title IX, Defendant may be sued for such a violation.

Defendant’s argument that it was not on “notice” of a private right of action for employment discrimination based on alleged sexual harassment is also without merit. Although outside the sovereign immunity context, in Jackson? the Supreme Court rejected this argument because “[flunding recipients have been on notice that they could be subjected to private suits for intentional sex discrimination under Title IX since 1979, when we decided Cannon.” In short, Plaintiff has an implied private right of action for money damages based on an employment discrimination claim for alleged sexual harassment under Title IX. Defendant, an entity of the State of Kansas, has waived sovereign immunity to claims under Title IX as outlined in 42 U.S.C. § 2000d-7(a)(1)-(2). Thus, Defendant is not immune.

c. Denial of Access to Educational Benefits

Defendant further argues that Plaintiffs allegations of emotional distress were insufficient for recovery of damages under Title IX because Plaintiff is required to show a denial of access to educational programs or activities. The Court briefly discussed its analysis of this requirement in the context of Defendant’s argument that Title VII displaces relief under Title IX, concluding that in the employment discrimination context for purposes of Title IX sexual harassment allegations, denial of educational benefits is not a required showing outside of student sexual harassment claims. For purposes of clarification and analysis, the Court will expand on the applicable case law to explain why this “denial of access” requirement in the employment discrimination context under Title IX.

i. Case Law Applying Title VII Standards to Title IX

As a threshold matter, the Tenth Circuit holds that Title VII standards should be applied to a case of employment discrimination brought under Title IX, finding “no persuasive reason not to apply Title VII’s substantive standards regarding sex discrimination to Title IX suits.” The Tenth Circuit further elaborated that Title VII is “the most appropriate analogue when defining Title IX’s -substantive standards.”

Further, there is a body of case law applying Title VII’s substantive standards to Title IX employment discrimination claims. For example, in Doe v. Mercy Catholic Medical Center, the Third Circuit considered whether the claims of a medical resident for Title IX retaliation, quid pro quo sexual harassment, and hostile work environment were cognizable. First determining that there was a private right of action under Title IX, the Third Circuit went on to hold that Title VII standards governed both the retaliation and quid pro quo sexual harassment standards arising under Title IX. In fact, the Third Circuit applied only one Title IX substantive standard to the plaintiffs Title IX claims — the additional element of actual notice and deliberate indifference articulated in Gebser v. Lago Vista Independent School District. This substantive standard is _ not applied to Title VII sexual harassment claims. The Third Circuit reasoned this Title IX standard must apply, given Title IX’s Spending Clause origin, which requires “notice” of the conduct to the university.

Notably absent from these cases is any requirement of denial of access to educational benefits. Indeed, as the Court previously discussed, if a claimant was required to show a denial of equal access to educational benefits, Title IX would not be applicable to employment discrimination. For even a teacher or professor, whieh Defendant seemingly concedes would be entitled to Title IX protection, would not be able to demonstrate a denial of access to educational benefits within the meaning of Davis v. Monroe County Board of Education.

Furthermore, Defendant’s reliance on 34 C.F.R. § 106.51, a Department of Education regulation, is misplaced. This regulation provides a laundry list of employment benefits that cannot be denied on the basis of sex in an educational program or activity receiving federal financial aid, including broadly applying to “[a]ny other term, condition, or privilege of employment.” Of course, this regulation is directly contrary to Defendant’s position that Plaintiff must show a denial of access to “educational” benefits; nothing in this regulation limits the reach of Title IX to denial of educational benefits. In fact, the language “terms, conditions, or privileges of employment” as used in 34 C.F.R. § 106.51(b)(10) is directly lifted from Title VII.

Finally, while the Court acknowledges that it applied the denial of access to educational benefits standard in ruling on the Rule 50(a) motion, the issue was not raised at that stage in the litigation as Plaintiff did not respond to the Rule 50(a) motion. With the benefit of extensive briefing in the Rule 50(b) context, the Court agrees with Plaintiff that the systemic effect of denying the victim access to educational programs or activities standard does not apply in the Title IX employment discrimination context.

ii. Application of Title VII Severe or Pervasive Harassment Standard

While Plaintiff is not required to show a denial of access to educational benefits, Title VII sexual harassment standards dictate what constitutes denial of terms, conditions, or privileges of employment. “For sexual harassment to be actionable, it must be sufficiently severe or pervasive to alter the conditions of [the victim's] employment and create an abusive working environment.” The applicable test for a hostile work environment has both an objective and subjective component. In determining whether an objectively “severe or .pervasive” hostile environment exists, .the Tenth Circuit states “it is necessary to look at all the circumstances involved,” including “the frequency of the discriminatory conduct; its severity; .whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” The objective inquiry focuses on the perspective of a reasonable person in the plaintiffs position considering all the circumstances. To determine whether the environment was sufficiently severe or pervasive, the court'is not required to find that the offending conduct seriously affected the plaintiffs psychological well-being. However, “ ‘simple teasing,’ ... offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment.’ ”

There was sufficient evidence presented at trial, that the harassment was sufficiently objectively “severe or pervasive” to change the terms or conditions of Plaintiffs employment. Jana Giles engaged in physical contact with Plaintiff, including hair touching incidents and Giles’s attempt to rub against Plaintiff while Plaintiff was cleaning a bathroom stall. Although there was contrary evidence that the hair touching incident was consensual, Plaintiff testified that it was not. It is not the province of the Court to make credibility determinations. Viewing the evidence in the light most favorable to Plaintiff, the hair touching incidents were non-consensual.

Further, there was evidence of objectively severe or pervasive harassment. Giles made numerous sexually charged comments, including asking Plaintiffs husband how she tastes, asking Plaintiff about her sex life with her husband, asking Plaintiff if she had been with a woman, telling Plaintiff she could make her feel better than her husband, and making a “hu-hu-hu” noise to mimic the female orgasm while telling Plaintiff she had practiced all night for her. Giles also made sexually charged gestures toward Plaintiff, including wiping her crotch in front of her. Further, on at least one occasion, Giles sat and .waited in Plaintiffs custodial closet in the dark, startling Plaintiff when she arrived. Giles greeted Plaintiff, saying Plaintiff had finally made it. Plaintiff video recorded Cathy Butler Brown wiping her crotch in front of Plaintiff and telling her to “picture this.” Plaintiff testified that incidents of this nature happened on average two to three times per week starting in 2012. Viewing the evidence in the light most favorable to Plaintiff, there was sufficient evidence of an objectively hostile work environment from the perspective of a reasonable person in Plaintiffs position.

And, there was sufficient evidence of conduct that was subjectively severe or pervasive. Although ' Plaintiff need not prove psychological suffering to recover, she presented ample evidence that her psychological well-being suffered as a result of the environment at PSU. Plaintiff testified that the sexually harassing conduct of Giles and Butler Brown affected her health. She could not eat, felt sick, and felt “gross.” She began having nightmares and had difficulty sleeping at night. During the day, she suffered from anxiety, experiencing her heart beating fast, sweating, and nausea. There was also evidence that while at work, Plaintiff would stop working for short periods of time and sit in her custodial closet, to cope with her anxiety. Plaintiff testified that after Giles started harassing her, she had to take an increased dosage of Xanax. While she had suffered panic attacks before the harassment started, Plaintiff testified that the panic attacks became more severe and that she ranked her anxiety as greater than 10 on a scale of 1 to 10 following the harassment. Plaintiff testified that she was “scared for her life.”

Sandra Brown, a custodial supervisor senior at PSU, corroborated Plaintiffs testimony, describing how Plaintiff was “bubbly,” “fun,” and “talkative,” before the alleged harassment began, but after it began, Plaintiff stopped talking to others, often cried, acted sad, and seemed depressed. Sandra Brown observed Plaintiff at work with a red nose and swollen eyes. Plaintiffs husband, Rick Fox, who also worked as a custodial specialist at PSU, testified that during the time period of the harassment, Plaintiff acted sad, cried herself to sleep, and lost weight. Viewing the evidence in the light most favorable to Plaintiff, there is sufficient evidence that the harassment was both objectively and subjectively severe or pervasive, and thus was actionable under Title IX.

d. Actual Notice And Deliberate Indifference

Defendant’s argument that there was insufficient evidence of actual notice to an appropriate person at PSU is threefold. First, Defendant argues that actual notice was not given to an appropriate person, namely Johnson, until February 2014. Second, if Endicott and Malle were appropriate persons to receive reports of sexual harassment, Plaintiffs statements were too vague to give them notice. Third, once charged with actual notice, PSU did not act deliberately indifferent to the allegations of sexual harassment.

To succeed on a Title IX claim, the Supreme Court has held that a claim for money damages based on sexual harassment may arise under Title IX only if (1) “an official who at a minimum has authority to address the alleged discrimination and to institute corrective measures on the [funding] recipient’s behalf has actual knowledge of discrimination in the recipient’s programs and fails adequately to respond,” and (2) the inadequate response “amount[s] to deliberate indifference to discrimination.” Schools cannot be held vicariously liable for acts of sexual harassment committed on campus. Instead, schools are liable under Title IX for only their own misconduct, and not just any type of misconduct. The school must be found to have acted with legal culpability known as deliberate indifference. This rule imposes liability only on schools that choose to ignore Title IX’s mandates.

First, the Court finds that Johnson, PSU’s Director of Equal Opportunity and Affirmative Action, was not the only appropriate person to report the sexual harassment to in order to put the university on notice. Indeed, the Tenth Circuit rejects the notion of determining the “appropriate person” based on job title alone. And, it is not the standard that victims of sexual harassment must notify the Title IX coordinator or human resources representative to appropriately be considered to have put the university on actual notice. Rather, the Tenth Circuit determines the appropriate person based on whether the position had the ability to halt the sexual abuse. While it is undisputed that Johnson had the power to halt the abuse, she had no power to fire, discipline, or reprimand based on sexual harassment allegations. She testified that she was not a “disciplinarian” and only could “make recommendations.” Johnson was an appropriate person, but not the only appropriate person.

Second, the Court finds Malle and Endi-cott were among the appropriate persons to whom to report sexual harassment for purposes of Title IX liability. In Murrell v. School District Number 1 of Denver, Colorado, the Tenth Circuit clarified that “appropriate persons” to report to for the purposes of Title IX liability depends on whether they exercised control over the harasser and depends on the context in which the harassment occurred. While the Tenth Circuit held the principal of the school was considered an appropriate person, it also acknowledged that the “highest-ranking administrator” was not the only person for which Title IX liability could attach. The Tenth Circuit “decline[d] simply to name job titles that would or would not adequately” satisfy the “appropriate person” standard. Instead, it explained that this was necessarily a fact-based inquiry, focused on whether the official had the authority to halt known abuse. Defendant cites a number of cases requiring the appropriate person to have responsibility over the entire operation of the school, but this is not the standard the Tenth Circuit has annunciat-ed. Rather, the person needs to have authority to institute corrective measures.

Malle, the physical plant supervisor and direct supervisor of Plaintiff, Giles, and Butler Brown, exercised control over their schedules and assignments. While Malle did not have the power to fire or suspend, he was in charge of evaluating employees and had authority to issue verbal reprimands, as part of PSU’s progressive disciplinary system. Malle was also considered the shift supervisor, so complaints were to be lodged with him; and Malle testified that he would take notes on such complaints. Malle further testified that allegations of sexual harassment were considered an exception to the progressive discipline system, and that he had a duty to report such allegations to Johnson for investigation. Nonetheless, there was evidence that Malle gave a verbal reprimand to Butler Brown following the incident where she grabbed her crotch and said “picture this” to Plaintiff. Indeed, Defendant had PowerPoint and training materials on hostile work environment, which was used to train faculty and staff. These materials stated that if an employee was feeling harassed, he or she must “[r]eport the behavior to someone who is authorized to take action to stop the harassment such as your supervisor....” Malle had authority to issue corrective measures and thus was an “appropriate person” for purposes of reporting sexual harassment.

Endicott, the director of custodial services, oversaw all custodial and general services staff. Endicott had the power to hire, fire, and discipline employees, including Giles and Butler Brown. She also evaluated each custodial supervisor for PSU, and she signed off on supervisor evalúa-tions of all employees. Malle testified that complaints were often referred to Endicott when they were beyond his control. Thus Endicott was an “appropriate person” for purposes of reporting sexual harassment.

Furthermore, the Court finds that Malle and Endicott were given “actual notice” of sexual harassment prior to March 2014. Actual notice “requires more than a simple report of inappropriate conduct ... [however] the actual notice standard does not set the bar so high that a [school] is not put on notice until it receives a clearly credible report.” For example, the Tenth Circuit held in Rost v. Steamboat Springs RE-2 School District that the statement “that these boys were bothering me” was insufficient to put the school on actual notice of harassment.

But here, without delving into any off-campus conduct to which Defendant argues Title IX does not cover, there was more than sufficient evidence of actual notice of sexual harassment based solely on reports of the on-campus conduct. Plaintiff testified that in 2012 or 2013, she complained to Malle about Giles’ conduct. Plaintiff further testified that she had complained to Malle sometime before the September 2013 incident in which Malle took she and Giles to Endicott’s office after their altercation. Plaintiff testified that although Malle assured her that he would tell Endicott, nothing improved, and in fact, the harassment worsened. In September 2013, Malle witnessed a confrontation between Giles and Plaintiff, and took them to Endicott’s office. Plaintiff testified that during this meeting, she told Endicott about Giles rubbing against her in the bathroom stall while she cleaned, touching her hair, and making the sexual “hu-hu-hu” noise while saying she practiced all night for her. Plaintiff further testified that she told Endicott that Giles was lusting over her, and that Giles was undressing Plaintiff with her eyes.

Endicott testified that she first became aware of the conduct ongoing between Plaintiff and Giles in September 2013 when Malle brought Plaintiff and Giles to her office. Endicott further testified that Plaintiff never called the complained-of conduct “sexual harassment.” Endicott testified that Plaintiff mentioned the “hu-hu-hu” sound Giles made that Plaintiff believed was sexual in nature. Endicott further testified that she' then asked Plaintiff if she was alleging that Giles sexually harassed her, but Plaintiff did not answer. Endicott further testified that because of Plaintiffs nonresponse, Endicott did not perceive the conduct as sexual harassment. Giles’s testimony contradicts Endicott’s testimony about the meeting in Endicott’s office. Giles testified that at the meeting Plaintiff told Endicott that Plaintiff was alleging sexual harassment, which prompted Giles to throw her glasses in frustration and suggest Plaintiff and her meet at the park to have a fist fight.

Endicott further testified that Plaintiff did not make another complaint about harassment until February 2014 when Plaintiff showed Endicott the video of Butler Brown grabbing her crotch and saying .“picture this.” Endicott testified that this was the first time Plaintiff mentioned sexual harassment. Endicott also testified that in the February 2014 meeting, Plaintiff advised her that Plaintiff had been telling Malle about this conduct for quite some time.

Sandra Brown testified that on another occasion, while she was in Endicott’s office to make an unrelated complaint, Sandra Brown mentioned the relationship between Giles and Plaintiff to Endicott. Sandra Brown told Endicott “we all know something is going on” and “you can see her when she comes through the time clock, something has happened.” Butler Brown suggested to Endicott that the two be split up. Sandra Brown testified that Endicott stated it was none of Brown’s business. Sandra Brown further testified this while this was the only time she mentioned the conduct between Giles and Plaintiff to Endicott, she had brought it to Malle’s attention “at least twice” before. Sandra Brown had told Malle that there was something going on with Giles and Plaintiff, and it was getting out of hand, to which Malle responded that Endicott was taking care of it.

Rick Fox testified that after Plaintiff complained to Malle, on five or six occasions, Rick Fox asked Malle whether he was going to do something to stop the conduct. Rick Fox testified that he did not use the words “sexually hostile work environment” because he did not know what that was. Later, Rick Fox complained to Endicott after Malle did nothing to stop the conduct. And, in February 2014, Rick Fox wrote a letter to Johnson that included many of the sexual harassment allegations his wife made. Rick Fox’s letter further stated that he was complaining to Johnson because “Wanda and Kevin [were not] doing anything about” the allegations.

Viewing all of the testimony and evidence in the light most favorable to Plaintiff, the Court finds these facts sufficient to support a showing of actual notice to Malle and Endicott prior to March 2014. There is no requirement that the words “sexual harassment” must be used to put the university on notice. Based on all of the testimony outlined above, there was sufficient evidence Malle had been told on multiple occasions about the ongoing conduct between Plaintiff and Giles as early as 2012, including comments about the “hu-hu-hu” noise, hair touching, questioning about Plaintiffs sex life, and Giles rubbing against Plaintiff. During the September 2013 meeting in Endicott’s office, Plaintiff put Endicott on actual notice of sexual harassment, describing conduct including Giles rubbing her body against Plaintiff in a bathroom stall and making sexual noises and gestures. In fact, this prompted Endi-cott to question Plaintiff about whether she was alleging sexual harassment. Testimony from Giles confirmed that at the September 2013 meeting, Plaintiff alleged and Giles understood Plaintiff to be alleging sexual harassment. This was not merely an incident where Defendant “should have known” about the harassment, but rather, Defendant received actual notice of sexual harassment allegations. Viewing the evidence in the light most favorable to Plaintiff, there was evidence of actual notice to Malle and Endicott earlier than March 2014, and at the absolute latest in September 2013.

The Court further finds that there is sufficient evidence that having been given actual notice, Defendant acted with deliberate indifference. A response is deemed to show deliberate indifference only where the federal funding recipient’s response to the harassment or lack thereof is .clearly unreasonable in light of the known circumstances. Thus, a response is deemed to amount to deliberate indifference where there is an official decision by the recipient not to remedy the violation.

There was evidence that prior to September 2013, Plaintiff and Rick Fox had told Malle about sexually harassing conduct from Giles beginning in 2012. Despite Malle’s assurance that hé was going to involve Endicott, he did not. Nor did Defendant respond when Sandra Brown put Malle and Endicott on actual notice of issués’between Plaintiff and Giles. Viewing the evidence in the light most favorable to Plaintiff, this was unreasonable, in light of Malle’s duty per PSU training and policies to document everything, stop the harassment, and/or report it to Johnson.

Later, when Defendant was again given actual notice, this time during the September 2013 meeting, Defendant’s only response was to direct Plaintiff to clock out after Giles in order to .avoid confrontation. This was the only “remedial” measure taken. Despite multiple complaints of conduct constituting “sexual harassment,” Defendant performed no investigation, and Endieott did not report the complaints to Johnson so that Johnson could investigate. Based on PSU’s policy and training, and information on its website, sexual harassment was to be reported to Johnson. Nor did Defendant take disciplinary measures against Giles. Thus, as Plaintiff testified, after the September 2013 meeting, the harassing comments got worse, including Giles calling her a bitch, telling her she smelled like a skunk, and flipping her off. Malle and Endicott’s failure to report to Johnson, and the sole “remedial” measure of separation at the time clock, could be viewed as unreasonable in light of the espoused allegations of sexual harassment made at the meeting.

Defendant was again placed on actual notice in February 2014 when Plaintiff showed Endieott the video recording, of Butler Brown grabbing her crotch. Malle responded by meeting with Butler Brown and taking notes on Butler Brown’s side of the story. Malle testified he told Butler Brown the conduct was inappropriate and that she should not do it again; and Malle relayed this information to Endieott, who also talked to Butler Brown about the incident. Notes from their meeting suggested Butler Brown apologized to Endi-cott, and Endieott cautioned her that the gesture was inappropriate and should not be repeated. Neither Malle nor Endieott referred this to Johnson as a complaint of sexual harassment.

Moreover, Johnson’s response in March 2014 could be deemed unreasonable as a matter of law. As an appropriate person, Johnson’s investigation could reasonably be viewed as deliberately indifferent. Johnson received written complaints in March 2014 from Plaintiff and Rick Fox that actually used the word “harassment,” and outlined a number of incidents including the incident in September 2013 meeting, the instance of Butler Brown rubbing her crotch, and the instances of Giles asking about her sex life, and sitting in Plaintiffs custodial closet in the dark. Plaintiff suggested Johnson talk to Butler Brown and other witnesses at the timeclock in order to corroborate her allegations. Yet Johnson did not interview those witnesses for fear it would cause a “firestorm.” Based solely on her communications with Giles, Rick Fox, Endieott, Malle, and Plaintiff, Johnson decided that Giles committed no sexual harassment. And, Johnson also decided that Plaintiff had exhibited discriminatory conduct and contributed to a hostile work environment.

Johnson issued a letter that stated that the complained of conduct was inappropriate and in violation of PSU’s Notice of Nondiscrimination and Sexual Harassment Policy. And as a “remedy,” Johnson ordered Giles, Rick Fox, and Plaintiff to submit to sexual harassment training as discipline for mutually creating a hostile environment. Yet during her meeting with Plaintiff to counsel on sexual harassment, Johnson acknowledged that the conduct Plaintiff experienced was so pervasive that it altered the condition of Plaintiffs work environment, and made Plaintiff uncomfortable and scared to come to work. Unbeknownst to Johnson, Plaintiff was audio recording their conversation; and the tape recording of Johnson’s admissions was admitted into evidence. Viewing the evidence in the light most favorable to Plaintiff, there was sufficient evidence of a deliberately indifferent response to allegations of sexual harassment of which Defendant had actual notice.

2. Title VII Claim

Defendant moves for judgment as a matter of law on the Title VII claim for five reasons — (1) Plaintiff failed to prove that the harassment occurred because of her gender; (2) Plaintiff bootstrapped nonsexual, non-gender based conduct into her sexual harassment claim; (3) Defendant is not liable for after hour, off campus conduct; (4) Plaintiff failed to prove the conduct was severe, physically threatening or humiliating, or that it interfered with her work; and (5) Plaintiff failed to show Defendant had actual or constructive notice of the harassment.

a. Harassment Because of Plaintiffs Gender

Defendant contends it is entitled to judgment as a matter of law because Plaintiff provided insufficient evidence that the conduct was based on her gender. To bring a claim of gender discrimination based on a hostile work environment under Title VII, Plaintiff must establish (1) she is a member of a protected group; (2) she was subject to unwelcome harassment; (3) the harassment was based on sex; and (4) due to the harassment’s severity or pervasiveness, the harassment altered a term, condition, or privilege of the plaintiffs employment and created an abusive working environment. The Supreme Court has held that both opposite-sex and same-sex sexual harassment is actionable under Title VII, but that such harassment violates Title .VII only when it is “because of sex.” Thus, the third element — harassment based on sex — requires that the animus be based on sex because Title VII does not establish “a general civility code.”

After recognizing a cause of action for same-sex sexual harassment, the Supreme Court laid out three evidentiary routes in which an inference of discrimination because of sex can be drawn in the hostile work environment context. First, a fact-finder could infer that the harassment was motivated by sex if the conduct consisted of proposals of sexual activity and “there [was] credible evidence that the harasser was homosexual.” Second, the plaintiff could show that she was “harassed in such sex-specific and derogatory terms by another woman as to make it clear that the harasser [was] motivated by general hostility to the presence of women in the workplace.” Third, the plaintiff could “offer direct comparative evidence about how the alleged harasser treated members of both sexes in a mixéd-sex workplace.” Plaintiff takes the first evidentiary route. Elaborating on the first evidentiary route, the Tenth Circuit holds whether same-sex harassment is because of the victim’s sex hinges on whether the harasser’s conduct is motivated by “sexual desire.”

Defendant argues that Giles’s conduct was not based on Plaintiffs sex because many of the comments were nonsexual in nature, such as calling Plaintiff a skunk, telling her she stunk, and telling Plaintiff that she was going to beat her ass. Although there was evidence of such non-sexual comments, there was sufficient evidence from which a reasonable jury could find that Giles’s conduct was motivated by sexual desire, not by mere dislike. Giles was openly homosexual, as she and her long-term partner Kristi McGowan testified. There was evidence that Giles rubbed against Plaintiff in the bathroom stall and touched her hah* in a sexual manner. Giles made numerous statements that implicitly could be considered sexual proposals, For example, Giles stated that she could make Plaintiff feel better than her husband, questioned Plaintiffs sexual performance with her husband, and questioned Plaintiff about whether she had ever been with a woman.

Further, Giles made sexual gestures to Plaintiff. For example,- Giles rubbed her crotch at the timeclock and made a “hu-hu-hu” noise while stating she had been practicing all night for Plaintiff. Plaintiff testified Giles waited in Plaintiffs custodial closet with the lights off and stated she was glad Plaintiff made it and it was about time she got there. Giles did not need to explicitly ask Plaintiff to engage in sexual acts or to go on a date, as Defendant suggests. Viewing the evidence in the light most favorable to Plaintiff, there was sufficient evidence for a reasonable jury to conclude that Giles’s conduct was based on sexual desire, and that Giles’s conduct was based on Plaintiffs sex.

Defendant further argues that because Butler Brown was not proven to be homosexual, her conduct could not be considered to be based on Plaintiffs sex. However, the Tenth Circuit has explicitly stated that the alleged harasser need not be openly homosexual as long as the conduct was motivated by sexual desire. While there was no evidence submitted about Butler Brown’s sexual orientation, there was sufficient evidence that the February 2014 incident was motivated by sexual desire. Butler Brown was caught on camera looking at Plaintiff. She grabbed her crotch and told Plaintiff to “picture this.” Viewing the evidence in the light most favorable to Plaintiff, this is suggestive of an implicit invitation to engage in sexual conduct rather than “non-sexual horseplay” as Defendant suggests.

Defendant also argues that the alleged harassment was not based on sex because it was merely “non-sexual conduct, innocuous events, and/or bullying.” The Court rejects Defendant’s argument that in admitting evidence of non-sexual conduct that underlay Plaintiffs retaliation claim, the Court improperly subjected Defendant to liability on the retaliation claim on which the Court had previously granted summary judgment to Defendant. This argument lacks merit for several reasons. First, as the Court will explain in more depth below, the Tenth Circuit allows for consideration of facially gender-neutral abusive conduct. Second, the Court previously explained in its limine order that many of these facially gender-neutral events properly relate to both the retaliation claim and the hostile environment sexual harassment claim. For example, evidence of Giles challenging Plaintiff to a fístfight is relevant to both to the retaliation claim and the severity or pervasiveness of the harassment. Third, the jury was not instructed on retaliation, so Defendant is not being held liable on such a theory.

b. “Bootstrapping” Non-Sexual, Non-Gender Conduct

Defendant next contends it is entitled to judgment because Plaintiff is improperly “bootstrapping” non-sexual, non-gender based conduct as evidence. Although inart-fully drafted, Defendant’s brief seems to suggest that Plaintiff must meet a threshold for gender-related comments and conduct before non-gender-related comments and conduct may be considered, and that the evidence of gender-related conduct was insufficient in detail and frequency to allow admission of the non-gender-related conduct. Defendant cites no case law supporting its “threshold” theory, and the Court declines to impose such a requirement absent direction from the Tenth Circuit.

In fact, facially gender-neutral abusive conduct can support a gender-based hostile work environment claim when “viewed in the context of other, overtly gender-discriminatory conduct.” Thus, when a plaintiff introduces evidence of both gender-based and gender-neutral harassment, and when a jury, viewing the evidence in context, “reasonably could view all of the allegedly harassing conduct ... as .the product of sex and general hostility,” then “it is for the fact finder to decide whether such an inference could bé drawn.” The Tenth Circuit has also cautioned that there cannot be a “mathematically precise test” for a hostile work environment claim. Here it was proper to admit evidence of the.gender-neutral abusive conduct, including: (1) Giles challenged Plaintiff to a physical altercation; (2) Giles threw her eyeglasses across Endi-cott’s office during the September 2013 meeting; and (3) Giles called Plaintiff a “bitch,” told Plaintiff she was going to wipe her ass with Plaintiff, and told Plaintiff she smelled like a skunk.

Moreover, Defendant ignores or downplays nearly all of the gender-related harassment alleged at trial. As