United States Court of Appeals 

### FOR THE EIGHTH CIRCUIT

___________ Nos. 96-2426/2712

___________ Tien Lam, D.D.S., * * Appellee/Cross-Appellant, * * United States of America, * * Intervenor * * Appeal From the United State s District v. * Court for the Western District of
* Missouri. Curators of the University of Missouri, * at Kansas City Dental School, * * Appellant/Cross-Appellee. * *

___________ Submitted: May 22, 1997 Filed: September 3, 1997

___________ Before BEAM, Circuit Judge, HENLEY, Senior Circuit Judge, and LOKEN , Circuit Judge.

___________ BEAM, Circuit Judge.
The Curators of the University of Missouri (the University) appea l the district court's denial of their motion for judgment as a matter of la w (JAML) on Tien Lam's claim of hostile environment discrimination i n education in violation of Title IX of the

## -2-

Education Amendments of 1972. 20 U.S.C. §§ 1681-1688. Lam cross-appeals the district court's grant of summary judgment against her claim of quid pro quo discrimination in education. We affirm in part, reverse in part and remand for entry of judgment in favor of the University.

I. BACKGROUND

Tien Lam was a student at the University of Missouri Dental School, where Dr. Ho Wohn Kim was a clinical instructor. Kim did not "teach" in the traditional sense: he did not lecture, test, or assign grades t o stud ents. His primary duties consisted of assisting students in th e Univer sity's oral surgery clinic, although he did not determine whethe r students passed or failed their oral surgery rotation. In addition to hi s work for the University, Kim maintained a privat e dental practice that was not affiliated with t he school. Kim, without the knowledge of the dental school, hired Lam to assist him in his private practice on two different dates. The first time Lam worked at Kim's office was uneventful. However , on the second occasion Kim forcibly embraced Lam and kissed her. La m rejected Kim's overtures and fled the office.
Several days later, Lam notified the University of the incident, and complained that Kim had been trying to telephone and visit her. Universit y officials told Kim not to contact Lam, and informed him that they wer e undertaking an investigation of Lam's allegation s. Kim was instructed not to return to work until that investigation had been completed. Kim then resigned.
The assault triggered memories of sexual abuse Lam had suffered while fle eing Viet Nam. In the weeks following the incident, Lam becam e increasingly depressed and was eventually hospitalized. Upon her return to school, the University allowed Lam to complete missed assignments and reschedule examinations. Later that semester, in a course unrelated to Ki m or the oral surgery clinic, instructors showed an

## Lam's initial complaint also named Kim as a defendant. Before trial, La m 1 

## settled with Kim, and he was dismissed from the lawsuit. -3- instructional videotape containing sexual innuen dos. Lam told her advisor that the tape offende d her, but did not complain to the University or the instructors.

Lam filed suit against the University, alleging both hostil e 1 environment and quid pro quo discrimination in education. The University moved for summary judgment on both claims. The district court grante d judgme nt on the quid pro quo claim, and denied it on the hostil e env ironment theory. That claim was tried to a jury, which returned a verdict in Lam's favor. The University timely renewed its motion for JAML , and, when it was denied, initiated this appeal.

II. DISCUSSION

A. Eleventh Amendment Immunity

Aft er the University filed its Notice of Appeal in this case , Seminole Tribe of Flo rida v. Florida , 116 S. Ct. 1114 (1996) was decided. The University then filed a Motion for Summary Reversal and Vacation o f Judgment, arguing that Seminole Tribe had divested the federal courts of subject matter jurisdiction over Title IX suits. In Crawford v. Davis , 10 9 F.3d 1281, 1282-83 (8th Cir. 1997), we held that under Seminole Tribe , the Eleventh Amendment do es not deprive the federal courts of jurisdiction to hear Title IX claims. We are bound by Crawford

.

B. Judgment as a Matter of Law

We review

a court's grant or denial of JAML de novo, using the same standards as the tria l court. Wood v. Minnesota Mining and Mfg. Co. , 112 F.3d 306, 309 (8th Cir. 1997). JAML is appropri ate when "a party has been fully heard on an issue and

## -4-

there is no legally s ufficient evidentiary basis for a reasonable jury to find for that party on that issue." Fed. R. Civ. P. 50 (a)(1).

In order for sex discrimination to b e actionable under Title IX, the discri mination must be connected with an "education program or activit y receiving Federal financial assistance." 20 U.S.C. § 1681(a). Th e University argues that Lam never established the predicate nexus between Kim 's assault and an "education program or activity" of the University

. The langua ge "education program or activity" was added to Title IX b y Congress in 1987 to make clear that discrimination is prohibited throughou t entire agencies or institutions if any part receives federal financia l assistance. See Civil Rights Restoration Act of 1987, Pub. L. No. 100-259 , 10 2 Stat. 28 (codified at 20 U.S.C. § 1681 (a)). The Senate Repor t accomp anying the Amendment explained that the revision is meant t o "include, but is not limited to . . . traditional educational operations, faculty and student housing, campus shuttle bus service, campu s restaurants, the bookstore, and other commercial activities." S. Rep. No. 100-64, at 17 (1987), reprinted in 1988 U.S.C.C.A.N. 3, 19. All of th e activ ities listed are controlled by and inure some benefit to th e institution.

Here, i t is undisputed that Kim conferred no benefit to the Denta l School by operating a separate, competing dental clinic. Correspondingly, the University exerci sed no control over the conduct of business at Kim's office. The University did not provide staff, funding or any othe r support. There was no University requirement of private clinical work for students like Lam. In fact, Lam testified that she kept her work a secret fromthe University. We hold that under these facts, Kim's independent, private dental practice did not constitute a program or activity of th e University.
Lam attempts to persuade us that lia bility is nevertheless proper in this case by citing p recedent in which she claims courts allowed Title IX claims involving off- campus assaults. However, every case cited involved allegations of conduc t occurring either on campus or during some activity of the institution. See , e.g. , Franklin v.

## This conclusion makes it unnecessary for us to reach the remainder of th e 2 

## University's arguments on appeal. -5- Gwinnett County Pub. Sch. , 503 U.S. 60, 63 (1992) (alleging that student was removed from class for coercive intercourse on school premises); Bolon
v. Rolla Pub. Sch, , 917 F. Supp. 1423, 1427 (E.D. Mo. 1996) (allegin g sexual contact during school); Nelson v. Almont Community Sch. , 931 F

. Supp. 1345, 1348-51 (E.D. Mich. 1996) (alleging sexual contact on school premises and during school-sponsored activities); Patricia H. v. Berkley Unified Sch. Dist. , 830 F. Supp 1288, 1296-97 (N.D. Cal. 1993) (alleging that continued presence at school of teacher who had previously molested plaintiffs created ho stile environment). The assault by Kim did not occur in school or during any University-sponsored activity. It therefore canno t be the predicate for institutional liability under Title IX.
Lam did present other evidence of a hostile environment at the Dental Scho ol in the form of the offensive videotape. However, a necessar y element of a claim under Title IX for hostile environment sexual harassmen t is that "the harassment was sufficiently severe or pervasive so as to alte r the co nditions of her education and create an abusive educationa l environme nt." Kinman v. Omaha Public Sch. Dist. , 94 F.3d 463, 468 (8t h Cir. 1996). This single exposure to a distastef ul videotape is not severe or pervasive enough t o create a hostile education environment. Montandon
v. Farmla nd Indus. Inc. , 116 F.3d 355, 358 (8th Cir. 1997) (exposure t o offensive behavior by supervisor on one instance does not satisfy "severe or pervasive" requirement under Title VII). Since L am did not establish that Kim's assault was connected to a n "education program or activity," she cannot rely on that incident to state
a claim under Title IX. Without the Kim assault, the remaining incident of harassment was insufficiently severe or pervasive to prove an element of her prima facie case. The district court erred in failing to grant the 2 University JAML on Lam's hostile education environment claim.

## S ince Lam is no longer a prevailing party, we also vacate the district court' s 3 

## award of costs and attorneys' fees.
-6- Finally, Lam cross-appeals the district court's grant of summar y judgment to the University on her quid pro quo claim. Quid pro qu o harassment under Titl e IX arises when the receipt of academic benefits is conditioned on acquiescence to sexual advances. Kinman , 94 F.3d at 467. Lamreports that she believed Kim would help her at school if she worked for him at his private clinic. However, Lam's s ubjective hopes of special treatment are legally insufficient to state a claim of quid pro qu o discrimination. See Cram v. Lamson & Sessions Co. , 49 F.3d 466, 474 (8th Cir. 1995) (plaintiff's subjective belief that defendant had threatened jo b retaliation did not state a claim of quid pro qu o sexual harassment). Lam failed to prove that she was denied any educatio nal benefit because of her refusal to submit to Kim's sexual advances. In fact, since Kim had n o authority over her gr ades, exams, or course work, Lam failed to establish that Kim even had the ability impose an educational detriment. Th e district court correctly granted JAML on this issue.

III. CONCLUSION
For the foregoing reasons the district court's order granting s ummary judgment on Lam's quid pro quo claim is affirmed and its order denying the University 's motion for JAML is reversed. The case is remanded wit h 3 instructions to enter judgment for the University on all claims.

A true copy.
ATTEST: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.