IN THE SUPREME COURT OF MISSISSIPPI

NO. 2003-CA-00190-SCT

UNIVERSITY OF SOUTHERN MISSISSIPPI; DR.

DAVID HUFFMAN, DR. GLENN HARPER, AND DR.

REX STAMPER

v.

DAVIDA DAWN WILLIAMS

DATE OF JUDGMENT: 7/30/2002

TRIAL JUDGE: HON. RICHARD W. McKENZIE

COURT FROM WHICH APPEALED: FORREST COUNTY CIRCUIT COURT

ATTORNEYS FOR APPELLANT: ALAN M. PURDIE

LEE PARTEE GORE

RICKY L. BOGGAN

ATTORNEY FOR APPELLEE: KIM T. CHAZE

NATURE OF THE CASE: CIVIL - TORTS-OTHER THAN PERSONAL

INJURY & PROPERTY DAMAGE

DISPOSITION: AFFIRMED IN PART; REVERSED AND

REMANDED IN PART - 11/10/2004

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

EN BANC.

COBB, PRESIDING JUSTICE, FOR THE COURT:

¶1. On July

16, 1996, Davida Dawn Williams, a doctoral student at the University of

Southern Mississi

ppi (USM), filed suit in the Forrest County Circuit Court against USM, as

well as USM professors Dr. David Huffman, Dr. Glenn Harper, Dr. Har ry McCraw, and Dr. Rex

Stamper, in their individual and official capacities. She sought actual damages in the sum of

$10 million, punitive damages in the sum of $10 million, relief under 42 U.S.C. §§ 1983 et1 Dr. Harry McCraw died soon after the suit was filed, and prior to trial, his estate was dismissed.

2 seq. and unspecified injunctiv e relief under the Mississippi Rules of Civil Procedure and

statutes. Her complaint alleged that the defendants jointly and severally engaged in a wrongful

and malevolent course of conduct which prevented her from receiving her doctoral degree and

caused severe emotional and mental anguish. In addition, she alleged general deprivation of

unspecified property interests and contractual and constitutional right s

. Six years later, in July

2002, after lengthy delays, nominal activity in the case, continuances, and resettings of trial

dates, the case was tried before a jury which returned an 11-1 general verdict for Williams, in

the sum of $800,000 “actual damages.” The trial court entered judgment in accordance with

the verdict. Following denial of the defendants’ motions for remittitur, JNOV, and

alternatively for a ne w trial, USM and three of the four professors 1 timely perfected their

appeal. They raise twelve issues which encompass incorrect and unwarranted jury instructions;

fail ure to apply the Mississippi Tort Claims Act; incorrect application of 42 U.S.C. § 1983;

erroneous denial by the trial court o f their motions for directed verdict, new trial, JNOV or

remittitur; judgment against the great weight of the evidence; and no legal basis for the

judgment.

¶2. After careful review of the record before u s, we conclude that the trial court should

have granted the defendants’ motion for JNOV on the § 1983 claim and the Mississippi Tort

Claims Act claim. We affirm, however, the trial court’s denial of the defendants’ motion for

JNOV on Williams’s

contract claim. We reverse the judgment entered against the defendants,

and we remand to the trial court for a new trial solely as to damages on Williams’s breach of

contract claim.2 Dr. Rex Stamper was the committee chair and is from time to time in the record referred to as

chair, major profe ssor, or dissertation director. Members of the initial committee were Drs. David

Wheeler, Harry McCraw, Thomas Richardson, and Kenneth Watson. There was testimony from Dr.

Wheeler that there may be two committees involved in the doctoral process, t he exam committee to

evaluate the exam and a different dissertation committee. He then went on to say that Williams had a

doctoral committee, and whether this was her dissertation committee or not, he didn’t know. There is no

reference in the record to indicate a different “exam committee”, and it appears that the terms “doctoral

committee” and “dissertation committee” are us ed interchangeably. There apparently was an initial

dissertation committee as stated immediately above, and at some time after the September 1990 meeting

at which Williams voiced her complaints and asked for a new chair of the committee, Dr. Anne Wallace

was added, and Dr. McCraw was named the new chair or director. Dr. Will Lyddon, who was requested

by Williams, was never added, and the second rejecti on of the dissertation was approved by Drs.

McCraw, Wallace and Watson only.

Drs. Richardson and Wallace were the only two witnesses called to testify on behalf of USM and

the professors. Both of them denied being on Williams’s dissertation committee, although contradictory

evidence is also found in the record.

3 ABD (All But Dissertation) is a common designation used for doctoral students who have

completed all requirements but the completion and defense of their dissertation.

4 According to testimony by Dr. Wheeler, infra, the designation Eng 898 appears on the transcript

of a student who is “actively working on a dissertation.” It appears on Williams’s transcript only in the

spring and fall of 1987. There is no testimony which indicates that the absence of such transcript

designation means or implies that a student is not working on the dissertation. There were tuition costs

involved when the enrollment designation was shown, and none thereafter.

3 FACTS

¶3. The facts in this case cover a period of seventeen years, and the follow ing time line

is

provided to assist in understanding the sequence of events relevant to Williams’s claims:

Summer 1985 enrolled at USM to pursue Ph.D. degree in English

Fall 1985 passed doctoral qualifying examination

completed 10 hours, made three A’s and one B

Spring & Summer 1986 completed 19 hours, made all A’s

August 6, 1986 passed graduate school foreign language test

Fall 1986 completed seven hours, made all A’s

dissertation committee selected 2

Spring 1987 completed three hours, made an A

passed doctoral comprehensive exam (now ABD 3 )

admitted to candidacy for Ph.D., enrolled Eng. 898

Fall 1987 Eng 898 4 (independent study on dissertation)5 Williams’s account of the assault was that Stamper just appeared at her door, and she was

stunned. He had her dissertation in his hand and said that he had read it that weekend. As she put it, “I

didn’t say anything because now I’m like totally distrustful. And he just came on in. I didn’t invite him and

he just came on through the door. He’s aggressive in that way.” She said she was upset and scared but

confronted him with what she had been told by Jessie Stevens, a staff person in the English department:

“‘[A]fter you promising me that you are, after three years now, that you’re going to get me defended this

semester, she just told me you’re not even going to be on campus, that you’re taking sabbatical leave.’

And he just laughed and said, ‘well don’t worry about it; we’ll have plenty of time; we’ll have lots of fun.’

And at that time he pushed me...backwards on top of the glass table...and he was on top of me and running

his hands all over me, my private parts, and he seemed to be enjoying it immensely, and he said . . .‘[d]on’t

worry about your doctorate . . . because when I sign off on your dissertation, the rest of the committee

members will do what I tell them.’” Williams explained that she was able to get away from Stamper: “I

was hysterical, and I was screaming at the top of my lungs, get out of here, get out of here, and he left.”

He also implied “no sex, no dissertation, no Ph.D.,” according to Williams.

Stamper admitted going to Williams’s home, but testified that “her recollection of that event and

my recollection are totally separate.” He acknowledged that he had gone to her home some 25 to 30 times

over a six-year period and admitted that he remembered having sexual intercourse with her in her home

on four occasions “between 1985 through 1986. I had no relations with her from ‘87, ‘88 and further.”

4 instructed in English department - USM

1988 dissertation in progress (not shown on transcript)

instructed in English department - USM

instructed in criminal justice department - USM

February 1989 received inappropriate Valentine card from Stamper

Spring & Summer 1989 dissertation in progress (not shown on transcript)

instructed in criminal justice department - USM

March 3, 1989 prospectus for dissertation approved by committee

August 31, 1989 dissertation still in progress (not shown on transcript)

Fall 1989 instructed in cri minal justice, Pearl River Community

College (PRCC)

June 21, 1990 Stamper’s memo to Williams indicatin g valid dissertation

premise but underdeveloped concept, some suggestions,

requesting to see it before proceeding

Aug. or Sept. 1990 Stamper’s visit to Willi ams’s home to discuss dissertation

revisions/attempted sexual assault 5

Sept. 1990 meeting with Dr. Harper, Dean of the College of

Liberal

Arts and Dr. Wheeler, Chair of the English Depa rtment, to

report Stamper’s conduct and request his removal

Spring & Fall 1990 instructed in criminal justice and English, PRCC

Spring 1991 instructed in criminal justice and English, PRCC

s till trying to meet with Dr. McCraw, new director of her

dissertation committee appointed by Dr. Wheeler5

April 17, 1991 head of USM’ s criminal justice program humiliated

Will iams at annual awards program by calling her to stage

to thank her, then making improper remark with sexual

overtones about her before roughly 200 people

May 13, 1991 letter to Dean Harper to report incident, continued

harassment, Stamper still making unwanted calls to her

Summer & Fall 1991 instructed in English, PRCC

renewed request to Dr. M cCraw for advice and direction

as to how to proceed with dissertation

February 1992 married and moved to Gautier, MS

Spring 1992 instructed in English, PRCC

March & September, 1992 letters to Dr. McCraw, still awaiting response

January 1993 another letter to Dr. McCraw requesting a meeting with him to

discuss dissertation

December 1993 yet another letter to Dr. McCraw asking to meet with him,

pointing out she’s b e en ABD since 1987, must see him

and determine the future course of dissertation

November 1994 talked separately with Dr. Wheeler and Dr. McCraw, gave

McCraw revised dissertat i on, and was told Dr. Richardson

wo uld have to be replaced; plans made to defend, finish all

work, and get d egree by December 1995; no further

communication for 6 months

June 5, 1995 received letter from Dr. McCraw noting dissertation not

a viable project and she needed to start over; included was

a letter from Dr. Wallace, appointed to the dissertation

committee without Williams’s knowledge or approval,

corroborating McCraw’s evaluation

December, 1995 letter to Dean Harper saying the sexual harassment and

discrimination still c ontinue, asking for help; Williams’s

attorney’s letter to Dr. Ginn, Vice President of

Administrative Affairs, deno ted as grievance notice

outlining eleven specific complaints

January 8, 1996 letter from Mary Villeponteaux, graduate director,

offering sympathy but no specific help with complaints

February 15, 1996 meeting between Williams, her attorney, Dr. Huffman, and

USM’s attorney to discuss problems and solutions

connected; Huffman to get back in touch, but did not

April 23, 1996 letter to USM attorney requesting status report; no

response

July 15, 1996 filed suit in Forrest County Circuit Court

July 30, 2002 Final Judgment6

¶4. The Ph.D. degree in English program in w hich Williams enrolled requires a qualifying

examination after one full semester’s work; proficiency in two for eign languages; a minimum

of 48 semester hours beyond the master’s degree; a written comprehensive examination; and

presentation and defense of a dissertation, ac cording to the graduate bulletin under which she

enrolled. The portion of the bulletin included in the record is silent about procedures to be

followed when problems involving the completion and defense of a dissertation arise. By the

end of 1987, Williams had finished her course work with a 3.92 grade point average, and she

had passed her comprehensive exams and proficiency tests in two foreign languages. Positive

and encouraging remarks about that progress are in the rec ord. Subsequently, her dissertation

committee approved a detailed pros pectus, which cleared Williams to proceed with research

and writing of her dissertation. Upon successful defense of the dissertation, she would receive

her Ph.D. degree.

¶5. According to the graduate bulletin, a student’s presentati on and defense of a

dissertation

is supervised by a departmental committee composed of a chairman and four members

recommended by the department chairman and appointed by the grad uate dean. Williams was

allowed to request and approve who would se rve as members of her committee, including

Stamper as the chair of the committee and director of her dissertation.

¶6. The primary focus of the present case is Stamper ’s conduct as a professor and as the

chair of Williams’s doctoral committee. The secondary focus is the general lack of attention

and seriousness shown by a number of USM professors and officials to Williams’s reports of

improper and unwarranted sexual misconduct. Williams testified that Stamper’s conduct as

a faculty member towards her between 1985 and 1987 was “flirty” but not “harmful.”7

However, after Stamper h ad become chair of her dissertation committee, that began to change.

Williams testified at trial that Stamper’s conduct became “s exual harassment,” which included,

among other things: office visits which often turned sexual in nature; telephone calls to her

home; a lewd and vulgar Valentine card placed by Stamper into Williams’s university mailbox

in February 1989; and eventually, in 1990, the sexual assault.

¶7. Stamper acknowledged in his testimony that he went to Williams’s home between

twenty-five and thirty times for reasons related to his academic duties and his chairmanship

of Williams’s dissertation. In addition to these trips to Williams’s home, Stamper also

conceded and admitted that he visited in the homes of between 100 an d 200 students, male and

female, during his 20 year t enure at USM. Stamper also testified that he and Williams had

engaged in consensual sexual relations, which Williams denied.

¶8. For several years before the assault, Williams had complained occasionally and

generally about Stamper’s inappropriate behavior to his immediate bosses, Dr. Thomas

Richardson, Chair of the English Department from 1985-1988, and his successor, Dr. David

Wheeler, Chair from 1988 forward. After the assault, however, she set up a special meeting

with Dr. Glenn Harper, Dean of the Liberal Arts College, and English chair Wheel er to lodge

her complaints. According to Williams’s testimony, she told them in detail about what had

happened in her home with Stamper and what she had endured for the past several years by him.

Dean Harper, however, testified that she did not tell them about the alleged assau lt, but made

general allegations of inapp ropriate behavior, and only wanted Stamper removed as chair of her

doctoral committee . The result of the meeting, according to Williams, was that Harper and

Wheeler agreed to remove Stamper from the dissertation committee, name McCraw as8

chairman, order Stamper to stay aw ay from Williams, and add Dr. William Lyddon from the

Psychology Department to the committee. At trial, however, Stamper testified that he was not

removed from the committee and was never told to stay away from Williams. Furthermore,

Lyddon testified that he was never contacted about j oining Williams’s dissertation committee

and was never shown a copy of Williams’s dissertation.

¶9. Wi

lliams testified that, despite her complaint to Harper and Wheeler, the sexual

harassment continued. According to Williams, Stamper and another now former USM

professor har assed her until 1992, when she remarried. Williams further testified that, during

this t ime, she could not get advice that she sorely needed in order to proceed with her

dissertation. She wrote McCraw, her new dissertation chair, seven times between April 5,

1991, and November 29, 1994, and called him numerous times. As shown by the record, her

written messages were pleasant, positiv e and deferential to the heavy demands which Dr.

McCraw must have had with his classes, etc. They also clearly and courteously expressed her

concern about needing guidance regarding her dissertation. Finally, on June 5, 1995, more than

four years after he was appointed as chair, McCraw replied:

First of all, let me apologize for the unconscionable lateness of this

letter. . . . I got distracted and I failed to reply . . . .I am sorry if I have caused

you any inconvenience . . . .

The consensus of those of us who would form your graduate committee

here at USM (Dr. Anne Wallace, Dr. Ken Watson and myself) . . . is that this is

not a viable project

as it now stands. The particulars are spelled out in the

accompanying letter from Dr. Wallace. . . .

Our opinio n is that if you wish to pursue a doctorate in English at

USM, this c ould best be done by working with us from the start on a

project which would be fully suppor ted by contemporary criticism and critical

methodologies. . . .

(emphasis added.)9

¶10. After reading McCraw’s letter, Williams hired an attorney. On February 15, 1996,

Williams, her attorney, Vice President of Academic Affairs Dr. David Huffm an, and USM’s

attorney met to discuss Williams’s claim. When she did not hear from the university for

another five months, Williams filed suit on July 15, 1996.

¶11. When the case went to trial in July, 2002, much of the testimony and evidence

supporting Williams was admitted into the record without objection. During the six-day trial,

Williams herself testified at length. She was an articulate witness and described her academic

background which included an unde rgraduate degree in English (with special distinction) and

master’s degree in English from Arkansas State University, as well as further certification as

a specialist in community college teaching, also from ASU. She also described her career

prior to enrollment at USM, including two years as a tea cher and two years as an FBI special

agent (from which she res igned when she married, came to Mississippi, and embarked on the

pursuit of her Ph.D. in English).

¶12. She also called as witnesses Leland Ray, another graduate student; Dr. Darlys Alford,

a psychology professor and personal frie nd; Dr. David Wheeler; her son, Heath Williams; Dr.

Will Lyddon, psychology professor who Williams requested be appointed to her doctoral

committee; Dr. Norma n Stafford, professor of English at Arkansas State University; and David

Greenwell, Williams’s husband. Defendants Stamper, Harper, and Huffman were called,

adversel y, by Williams. USM and the professors offered little testimony in defense, calling

only Drs. Thomas Richardson and Anne Wallace (English Department faculty members) to

testify.

ANALYSIS10

¶13. We note at the outset that the dec ision of this Court reached in this case is very fact

specific and thus narrowly written and should not be construed as giving approval to the

applicati on of contract theory to circumvent the protection afforded our universities and the

employees thereof by the Mississippi Tort Claims Act.

¶14. This Court reviews a circuit court’s dec ision to deny a JNOV motion de novo — that

is, this Court does not defer to the circuit court’s decision but rather reviews the matter anew.

Northern Elec. Co. v. Phillips , 660 So.2d 1278, 1281 (Miss. 1995). A circuit court should

only deny a JNOV motion a s to a particular theory of liability where the particular theory of

liability is legally sufficient to support the verdict. Miss. R. Civ. P. 50.

I. Denial of JNOV re: Williams’s 42 U.S.C. § 1983 claim

¶15. Section 1983 creates a cause of action against any person who, acting under color of

state law, abridges rights created by the Constitution and laws of the United States.

Specifically, the statute provides:

Every person who, u

nder color of any statute, ordinance, regulation, custom, or

usage of any State . . . subjects, or causes to be subjected, any citizen of the

United States

. . . to the d eprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable to the party injured in an

action at law . . . .

42 U.S.C. § 1983. Section 1983 is not itself a source of substantive rights, but rather a remedy

for vindicating federal rights elsewhere conferred by those parts of the United States

Constitution and federal statutes it describes. W ilson v. Garcia

, 471 U.S. 261, 278, 105 S.Ct.

1938, 1948, 85 L.Ed.2d 254 (1985). However, based upon established principles of statutory

construction and common law immunities, the United States Supreme Court has h eld that

neither states nor state officials acting in their official capacities are “persons” within the11

meaning of § 1983. Will v. Mi c h. Dep’t of State Police

, 491 U.S. 58, 64, 109 S.Ct. 2304,

2309, 105 L.Ed.2d 45 (1989). In W ill

, the United States Supreme Cou r t said: “Section 1983

prov ides a federal forum to remedy many deprivations of civil liberties, but it does not provide

a federal forum for litigants who seek a remedy against a State for alleged deprivations of civil

liberties.” 491 U.S. at 66, 109 S.Ct. at 2309. Furthermore, according to W ill

, Congress did

not intend to create a cause of action through § 1 983 against States to be brought in state

courts. Id.

¶16. USM moved for judgment notwithstanding the verdict as to Williams’s 42 U.S.C. §

1983 claim. Though Williams claims in her brief before this Court that she did not seek relief

under §1983, she specifically pled a § 198 3 cause of action among others in her Complaint

initiating this lawsuit. Williams appeared to abandon all § 1983 claims during the course of

the trial, and the trial court refused, without explanation, the defendants’ requested jury

instruction D-5 which stated th at, as a matter of law, USM and the professors in their official

capacity, are not persons under 42 U.S.C. § 1983. Nevertheless, the trial court denied USM’s

motion for JNOV regarding any claim Williams had based upon § 19 8 3. It is uncontested by

the pa rties that USM is an agency of the State of Mississippi and therefore is immune from

suit in state courts unless the State waives its sovereign immunity or Congress overrides state

sovereign immunity through Section 5 of the Fourteenth Amendment. I d. at 66, 109 S. Ct. at

2309-10; Miss. Code Ann. § 11-46-5. Williams initially named as defendants USM, along

with professors Huffman, Harper, McCraw, an d Stamper in their individual and official

capacities. Subsequently, Williams voluntarily and inexplicably dismissed Stamper in his

individual ca pacity and also dismissed McCraw’s estate following his death. The circuit court,12

on motion for direct

ed verdict at the conclusion of Williams’s case-in-chief, dismissed Harper

and Huffman in their individual capacities.

¶17. Thus, when the jury retu rned its verdict, there were no individual defendants left; only

USM and the three professors in their official capacities remained. Accordingly, any § 1983

claims by Williams should have been dismissed as a matter of law, and the circuit court erred

when it denied USM’s motion for judgment notwithstan ding the verdict regarding Williams’s

42 U.S.C. § 1983 claim.

II. Denial of JNOV re: Williams’s contract claim

¶18. In her complaint, Williams stated th at as a doctoral student, she had “significant

contractual rights” and that the course of conduct of the defendants deprived her of those

rights. She claimed an implicit and explicit contract whereby she paid a significant amount of

mone y to USM in return for the opportunity to pursue her academic endeavors in an unfettered

academic environment, free from harassment. Although Williams asked for $10 million in

actual damages, $10 million in punitive damages, as well as all relief to which she is entitled

under § 1983, and for injunctive relief under unspecified statutes and rules of civil procedure,

she did not request specific performance or any other identifiable contractual relief other than

the omnibus request for “such relief which is just, legal, and equitable.”

¶19. Williams primarily relied on U niv. of Miss. Med. Ctr. v. Hughes

, 765 So. 2d 528

(Miss. 2000). In H

ughes

, several medica

l students sued the medical school for injunctive

relief when

the university changed its degree requirements after the students had enrolled. I d.

at 531. This Court held, after examining numerous federal and other state authorities, that “the

student-university relationship is contractual in nature and that the terms of the contract may13

be derived from a st

udent handbook, catalog, or other statement of university policy.” I d. at

534.

¶20. Williams argues, in essence, that USM breached the contract cr eated by USM’s

graduate catalog, by not providing her the educatio nal opportunity for which she paid, by not

giving her a fair hearing regarding her complaints about actions and inactions of the professors,

and by not acting with “good faith” and “fair dealing.” USM vigorously contests Williams’s

interpretation of Hughes

, arguing that the holding in Hughes is limited and th at Williams did

not prove USM violated any term of an alleged “contract.”

¶21. Until Hughes

, there was a dearth of Miss issippi case law defining the relationship

between the university and the student. In formulating the holding in H ughes

, this Court

examined carefully the law of numerous other jurisdictions and h ow they addressed the rights

and responsibilities in the student/university relationship. I d. This Court agreed with sister

jurisdictions that the student/university relationship is “contractual in nature,” but also held that

“rigid importation of the contractual doctrine has been rejected.” Id.

¶22. Of particular concern to this Court, as well as others acros s the nation, is the potential

danger of judicial

intervention in the academic context and that such intervention “would

interfere unnecessarily in the [u]niversity’s discretion to manage its academic affairs.” I d. at

535. However, this Court’s reluctance to intervene in the academic context does not mean that

academic decisions are inherently unreviewable. While this Court respects the academic

process and the necessarily deferential standard by which we r eview academic decisions, such

deference should not be construed as a license for adm inistrators to act arbitrarily and14

capriciously when

making decisions that affect a student’s academic standing, nor to act in bad

faith or deal unfairly with a student.

¶23. As in Hughes, the present case is one of first impr ession, involving a doctoral

candidate’s pursuit of the Ph.D. degree and the uni que dissertation committee/defense process

utilized in doctoral programs in universities nationwide. So we looked to other jurisdictions

for insight into how t

hey have applied the contractual duty of good faith and fair dealing to the

conduct of a university in its relationship with Ph.D. students. We found no doctoral cases on

point, but one invol

ving a master’s degree program is instructive. In O lsson v. Bd. of Higher

Educ.

, 402 N.E.2d 1150 , 1153 (N.Y. 1980), a master’s degree candidate with an “honors

aver age” at the John Jay College of Criminal Justice argued that the college should be estopped

from asserting that the student had not fulfilled the re quirements for graduation because the

student’s deficie ncy was caused in part by reliance upon a professor’s misleading statement

regarding the institution’s grading criteria. To obtain a master’s degree from the college,

Olsson had to pass a final “co mprehensive” examination on the field of criminal justice.

Relying on a professor’s misstatements as to the crite ria for passing the exam, Olsson and

several other students took the five question exam believing t hat they only had to score three

points o ut of a possible five on three questions. In reality, the students had to score three

points on four of the questions to pass the examination. Olsson petitioned the academic

appeals committee to award him his degree based upon the grading standard the professor

represented. The committee refused to do so, but in the interest of fairness it offered to

ex punge the results of Olsson’s examination and permit Olsson to take the exam again without

prejudice. Finding this offer unacceptable, Olsson instituted legal action to compel the6 The record does not reflect that the unspecified injunctive relief pled by Williams would include

that her current dissertation be a pproved, or even that she is asking to continue in the USM doctoral

program. She primarily seeks monetary damages for the harm which has been done.

15 college to award him a diploma based upon his existing examination score. While the New

York trial and intermediate appellate courts found for Olsson, the Court of Appeals (New

York’s highest

court) reversed, holding that estoppel was an extreme remedy to be used only

in the most egregious of circumstances. The Court of Appeals held that Olsson had a less

drastic remedy by being able to retake the test without prejudice. While the Court of Appeals

expressed and exercised caution in inter vening in academic affairs, the court did state that

intervention is warranted when an educational institution does not act in good faith in its

dealing with students, but instead exercises discretion in an arbitrary or irrational fashion. I d.

at 1153. In the present case, the remedy offered by USM arguably is extreme: that she start

all over, after 8 years of working directly on the dissertation, when she was unable to get the

guidance from those whose responsibility it was to advise and direct her work. 6

¶24. This Court has consistently recognized th at every contract contains an implied covenant

of good faith and fair dealing in performance and enforcement. M

orris v. Macione

, 546 So.2d

969, 971 (Miss. 1989). “Good faith is the faithfulness of an agreed purpose between two

parties, a purpose which is consistent with justified expectations of the other party. The breach

of good faith is bad faith characterized by some conduct which viola tes standards of decency,

fairness, or re asonableness.” C enac v. Murry

, 609 So.2d 1257, 1272 (Miss. 1992). Bad faith,

in turn, requires a showing of more than bad judgment or negligence; rather, “bad faith” implies7 Jury Instruction P-10 provided the elements of damages, as follows:

In fixing compensatory damages you should determine the amount of money which will, in

your judgment, reasonably and fairly compensate DAVIDA WILLIAMS for any harm of

any kind which was proximately c aused by the wrongful conduct of the Defendants.

Among the elements of injury and harm for which compensation may be awarded are:

A. Emotional harm, if any, to DAVIDA WILLIAMS during and after the

damages rece ived, including emotional distress, humiliation, personal indignity,

embarrassment, fear, anxiety, and/or anguish which DAVIDA WILLIAMS suffered;

B. Money lost;

C. contractual losses, if any, that she should be awarded, and this award should

place her in as good a position as she would have been if she had not been subjected to

the breach of contract.

No objection to this instruction was made by counsel for the defendants.

16 some conscious wrongdoing “because of dishonest purpose or moral obliquity.” B ailey v.

Bailey , 724 So.2d 335, 338 (Miss. 1998).

¶25. In the present case, there is no way to kno w the basis for the jury’s verdict which

awarded Williams “$800,000 in actual damages.” 7 The very nature of a general verdict

precludes that knowledge. Because this issue is before us on JNOV, our review is de novo, and

based upon the record before us, there is sufficient evidence from which reasonable jurors

co uld conclude that USM and its employees breached the duty of good faith and fair dealing

in their relationship with Williams. Although we are mindful that directly conflicting

testimony was given, the documentary evidence is clearly supportive of many of Williams’s

allegations.

¶26. When a student enrolls in a doctoral program, the university is justifie d in expecting the

student will satisfactorily complete all the requirements of the progr am. There is evidence that17

USM and its employees knowingly conducted themselves in ways which violated standards of

decency, fairness, and reasonableness.

¶27. As mentioned previously, it is uncontested that Williams maintained close to a 4.0

grade point average in her doctoral course work, demonstrated pr oficiency in two foreign

languages, passed her comprehensive exams, and obtained approval of her detailed prospectus.

In addition to her success in the doctoral p rogram, Williams was also entrusted by USM with

teaching responsibilities. In short, she was a mature, accomplished student on the verge of full

acceptan ce into academia. The jury apparently believed, however, that the actions and inactions

of Stamper and other USM officials precluded, or at least severely delayed, Williams’s ability

to complete the final requirement of a doctorate: the presentation and defense of an

acceptable dissertation.

¶28. Williams claims that Stamper prevented her from defending her docto ral dissertation

because she refused to engage in sexual relations and rebuffed his sexual advances, which he

d enies. Huffman, USM’s vice-president for academic affairs, testified that based upon USM’s

graduate bulletin, Williams had the right to a “fair committee that made non-arb i trary

decisions.”

Stamper claims that his refusal to allow Williams to defend her dissertation was

based upon deficiencies in the dissertation itself. Assuming, arguendo, that is correct, the jury

was still free to judge the credibility of the witnesses and consider what impact his other

actions, and those of other USM professors and/or officials, might have had upon her efforts

and ability to present a dissertation deemed worthy of defense. Stamper testified that he

visited Williams’s house between twenty-five and thirty times and had consensu al sex with her

on multiple occasions. He professed he was unaware of any university policy that precluded18

a professor from

being involved in a sexual relationship with his student. In addition, USM did

not contest the admission into evidence of the lewd Valentine which Stamper personally

delivered to Wi

lliams’s university mailbox. There was also testimony by a fellow professor

that Stamper had a reputation as a ladies’ man.

¶29. As proof that other USM professors engaged in consci ous wrongdoing, frustrating

Williams’s attempts to prepare and defend her dissertation, Will iams testified that in

September, 1990, she complained to Dean Harper and English Department Chair Wheeler

about Stamper’s se xual harassment and threats. Williams further testified that as a result of

her complaint, the y agreed to remove Stamper from the dissertation committee, prevent

Stam per from having contact with her, install McCraw as dissertation chair, and add Dr. Lyddon

to the committee. There is no documentary evidence in the record to show what, if anything,

was actually done by USM to fulfill such an agreement . According to the testimony of

Williams, Stamper did n

ot cease his harassment. In addition, Stamper himself testified that he

was never notified of any removal from Williams’s committee nor told to stay away from her.

Furthermore, Lyddon testified th at he was never contacted by a USM official about serving on

Williams’s committee and had never seen a copy of her dissertation. Finally, after Williams

made many attempts to correspond through mail or telephone with McCraw between spring

1991 and June, 1995, McCraw responded by apologizing for his “unconscionable” lack of

response. McCraw then went on to inform Williams that her dissertation committee

(professors Wallace, Watson and himself) did not believe her dissertation was presently viable

and that she would need to work with them “from the start on a [new] project.”19

¶30. This Court traditionally has held that e motional distress and mental anguish damages

are not recoverable in a breach of contract case in the absence of a finding of a separate

independent intention

al tort. Life & Cas. Ins. Co. v. Bristow , 529 So.2d 620, 624 (Miss.

1988). In recent years, however, this Court has moved away from this requirement. See

Southwest Miss. Reg’l Med. Ctr. v. Lawrence , 684 So.2d 1257, 1269 (Miss. 1996). It is now

undisputed that under Mississippi law a plaintif f can assert a claim for mental anguish and

emotional distress in a breach of contract action. However, our decisions over the past several

years addressing menta

l anguish and emotional distress are arguably unclear. On the one hand,

we have held that we require a heavy burden of proof in order to es t ablish a right to recover

e motional distress damages. W ilson v. Gen. Motors Acceptance Corp.

, 2003- CA-00233-

SCT, 2004 WL

1688355, at *6 (Miss. July 29, 2004). On the other hand, we have allowed

recovery for mental anguish based upon the following testimony:

Lawrence’s proof for her cla im for damages for mental anguish included her

testimony at trial that

she was ‘devastated’ as a result of the denial of benefits

and termination of employment. Lawrence stated that she was worried about

where she would get th

e money to cover the basic household expenses. She also

testified that she and her family lost the ir home as a result of the denial of

benefits and termination of employment.

Southwest Miss. Reg’l Med. Ctr. v. Lawrence , 684 So.2d at 1269.

¶31. We take this opportunity to clarify the burden for recovery of men tal anguish and

emotional distress in breach of contract actions. Plaintiffs may recover such damages without

proof of a physical manifestation. A dams v. U.S. Homecrafters, Inc.

, 744 So .2d 736, 743

(Miss. 1 999). Furthermore, expert testimony showing actual harm to prove mental injury is

not always required. G amble v. Dollar Gen. Corp ., 852 So.2d 5, 11 (Miss. 2003). However,8 The plaintiffs received death threats from an armed man who shot at their vehicle, handcuffed

them, and took them prisoner.

20 the plaintiff must

show (1) that mental anguish was a foreseeable consequence of the particular

br each of contract, and (2) that he or she actually suffered mental anguish. Such

generalizations as “it made me feel bad,” or “it upset me” are not sufficient. A plaintiff must

show specific suffering during a specific time frame. These requirements are not different

from the requirements to establish physical pain and suffering.

¶32. We have previously held that, “evidence consisting solely of a claim of sleeplessness

and mental anguish did not demonstrate an actual injury with sufficient certaint y to warrant

compensation.” M

orrison v. Means

, 680 So.2 d 803, 806-07 (Miss. 1996). We then clarified

this holding i

n Whitten v. Cox , 799 So.2d 1, 10-11 (Miss. 2000)), by pointing out that

testimony conc erning “discomforts” such as sleeplessness and irritability take on a different

importance when v

iewed in light of the event which engendered the mental anguish. In

Whitten

, we recognized greater significance to such terms because of the event 8 which caused

them.

¶33. Thus, “the nat

ure of the incident” can be important in two ways. First, understanding the

nature of the incident is essential in establishing whether emotional distress is foreseeable.

Additionally, in cases where the defendant’s conduct is more e gregious, the plaintiff’s burden

of estab lishing specific proof of suffering will decrease. Nevertheless, the burden is there,

and a plaintiff seeking emotional distress damages for a breach of contract must provide more

than general declarations of emotional distress.21

¶34. In the case before us, we have no doubt th at Williams presented sufficient proof of

emotional distress caused by USM’s failure to fulfill it s contractual obligations. Furthermore,

she was denied the fruits of her many years of academic labors.

¶35. We must point out that W illiams mentioned several times in her testimony the

emot ional effects Stamper’s actions had on her. Specifically, Williams testified about the

assault in her home and its effects on her mental and emotional well-being. Williams testified

that later that evening, she actually considered suicide, and ha d her gun in her hands, but that

her son was able to wrestle the gun aw ay from her. In addition to the assault by Stamper,

Williams testified to harassing phone calls and a shadowy figure outside her bedroom window

in the late night/early morning hours.

¶36. Regard ing the effects of USM’s actions preventing her from defending her dissertation,

Williams testified to “[t]he lack of guidance, the game playing and repeated sexual harassment

that I suffered in connection with my dissertation, and it’s taken a great toll on me, it’s a

paralyzing trauma. Even now, the word dissertation evokes strong feelings of dread, disgust,

anxiety, anger, and so forth, within me.”

¶37. Other persons al

so testified to the mental and emotional effects the defendants’ actions

had on Williams. Dr. Darlys Alford, Williams’s colleague, professor at USM, and licensed

professional counselor, testified that after the assault by Stamper “[Williams] was very

reluctan t to go to the University because she had been traumatized; she was very upset about

it,

. . . .” Alford also testified, “I was her friend, and I was very concerned about her because

she was under a lot of stress. She was not sleeping very well and she talked about this problem

all of the time. It was hard for her to focus on her work and to do her job.”22

¶38. Additional testimony as to the effec ts of the defendants’ actions on Williams’s mental

and emotional well-being came from Williams’s son, Heath, and her husband, David Greenwell.

Heath Wil

liams testified, “[Williams] was unbearably stressed out already. During the course

of the summer

. . . it really felt like, it was like being under siege if you can understand

. . .

there were telephone calls and everything. It just seemed constant, you know . . . [t]here didsn’t

seem to be any end to the harassment that was going on. And of course she was afraid most of

the time.” David Greenwell testified:

Well, to be specific, she suffered a t remendous trauma, but it is exhibited

in her behavior i

n the need of having a safe environment, a person around her

who could give her security

. . . . So it would reinforce a sense of a lost safety

and security in her.

She suffered tremendous insomina [sic], clinched hands, but in the

household itself, like telephone ringing, knock on the door, or just going

outside, I call it hypervigilance, being awa re of her surroundings, making sure

that she is safe or feels safe.

¶39. Under these facts, if they are accepted and believed by a properly instructed jury, we

f ind mental anguish and emotional distress for the breach of contract to be both for eseeable

and recoverable. However, Williams’s right to recover damages from USM for mental anguish

and emotional distress springs only from the breach of c ontract, not from the tortious conduct

of Stamper.

¶40. There is a fine line between Stamper’s objective wrongful conduct and his subjective

i mpact on the entire academic climate or environment of which he was an integral part. Thus,

upon ret rial, the jury must be carefully instructed to separate any mental anguish and emotional

distress caused by

Stamper’s assault and unauthorized tortious conduct, and award damages,23

if any, for ment al anguish and emotional distress only for the breach of contract, that is, only

for Williams’s denied opportunity to receive her doctorate.

III. Denial of JNOV re: Mississippi Tort Claims Act

¶41. USM and the professors also moved for judgment notwithstanding the verdict arguing

that the Mississippi Tort Claims Act, Miss. Code Ann. § 11-46-7(1) et seq., provides that the

MTCA is the exclusive remedy for the damages sought by Willi ams, which clearly sound in

tort. They argue that the proper vehicle for the relief sought by Williams against USM and the

professors is the MTCA. Their primary argument was that the trial by jury, which was in

contravention of the plain language of the statute, w as manifest error. Citing Miss. Code Ann.

§ 11-46-13(1), USM argued:

trial of any and all torts is to t he bench and not a jury. The waiver of immunity

by the Legislature contains certain limitati ons, including the requirement that

the Court be the finder of fact. Failure to comply with the statute destroys the

Court’s jurisdiction in this matter. The jury in this case heard and considered

evidence that dealt exclusively with torts such as trauma, assault, se xual

harassment, trespass, emotional distress, harassing te lephone calls, and other

such claims. . . .

¶42. The record clearly re flects that the parties considered separating the jury issues:

namely, the § 1983 claim and the contract claim, from the tort claims. Just how they planned

to accomplish this is anything but clear. According to USM: “While there was much

discussion among the lawyers and the C ircuit Judge regarding the proper procedure for

handling this case, the record is not clear in this reg ard.” Williams’s attorney, in response to

USM’s motion for directed verdict, stated: “[T]he MTCA issues are not for the jury as his

Honor is aware. In my personal experience in other jurisdictions, the Court often takes those24

under advisement and simply addresses those later . . . .” Later, in response to USM’s motion

for judgment notwithstanding the verdict, Williams stated:

It is also inappropriate and highly inaccurat e for the Defendants to contend that

the Mississippi Tort Claims Act (MTCA) had any beari ng on the jury’s verdict

s ince no torts were presented to the jury. It was announced by Plaintiff’s

c ounsel in open court, in Chambers to the court and to counsel opposite, and to

counsel opp osite personally that the Court, not the Jury, would be addressing the

tort issues.

. . . The Court will, in due course, resolve all issues regarding tort

relief if any.

¶43. Notwithstanding this pr onouncement, tort claims were clearly before the jury, and the

circuit court gave the following instruction:

Amo ng the elements of injury and harm for which compensation may be awarded

are: emotional harm, if any, to Davida Williams during and after the damages

received, including emotional distress, humiliation, personal indignity,

embarrassment, fear, anxiety, and/or anguish which Davida Williams suffered

. . . .

Thereafter, the jury returned a general verdict in favor of Williams in the sum of $800,000

“actual damages.”

Obviously, the circuit court did not “in due course resolve all issues

regarding tort relief,” but rather simply entered a final judgm ent based entirely on the jury’s

general verdict.

¶44. While USM and the professors, in t heir answer, properly raised the affirmative defense

that the MTCA was the exclusi ve remedy for the harms alleged by Williams, they did not seek

pre-tr ial adjudication of that issue. They readily submitted jury instructions yet in their posttrial arguments rely primarily on the jury issue.

¶45. Our review

of the record reveals that there was a total absence of any effort or intent

o n behalf of Williams to comply with the Mississippi Tort Claims Act. No notice of claim as

required by Section 11-46 -11 was ever filed. Thus, the statute of limitations has long since25

run, and any rec o very under the tort claims act is barred. We again emphasize that the decision

to totally ignore pursuit of a Mississippi Tort Claims Act s uit and to opt instead to pursue a

contra c tual or other claim of recovery for damages, is appropriate only in rare circumstances.

If the plaintiff so chooses and is unable to meet the stringent requirements for recovery on

other theories, the decision may result in no damages awarded to the plaintiff.

IV. Remittitur or Remand

¶46. USM asks for a remittitur to the $50,000 damage cap which would be the maximum

available had this matter been tried under the Tort Claims Act, or in the alternative, a new trial.

After considering both options, we conclude that the damages awarded were too speculative

based upon the evidence presented at trial. When the focus is on a monetary remedy, that

remedy must be such that the breaching party is not charged beyond the tro uble the breach

caused. F rierson v. Delt a Outdoor, Inc. , 794 So.2d 220, 225 (Miss. 2001) (citing W all v.

Swilley

, 562 So.2d 1252, 1256 (Miss. 1990)). The law limits speculation and conjecture and

imposes duti

es of mitigation to the injured party. I d. Specifically, damages may only be

recovered when the evidence presented at trial “removes their quantum from the realm of

speculation and conjecture and transports it through t he twilight zone and into the daylight of

reasonable certainty.” Id.

¶47. We hold that there was a valid contract between U SM and Williams and that USM

breached the contract and is, therefore, liable for damages arising from that bre ach. However,

the damages awarded at trial were too speculat ive, and the evidence insufficient to be relied

upon as proof for such damages.

CONCLUSION26

¶48. We conclude that the circuit court should have granted U SM’s motion for JNOV

regarding Williams’s § 1983 claim and regarding the applicability of t he Mississippi Tort

Claims Act. We affirm the trial court’s denial of USM’s motion for JNOV regarding

Williams’s contract claim. We reverse the judgment awarding damages, and we remand this

case for a new trial consistent with this opinion and limited to the sole issue of Williams’s

damages arising from USM’s breach of contract.

¶49. AFFIRMED IN PART AND REVERSED AND REMANDED IN PART.

WALLER, P.J., CARLSON AND DICKINSON, JJ., CONCU R

. SMITH, C.J.,

CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION.

EASLEY, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE

WRIT TEN OPINION. DIAZ, GRAVES AND RANDOLPH, JJ., NOT PARTICIPATING.

SMITH, CHIEF JUSTICE, CONCURRING IN PART AND DISSENTING IN

PART:

¶50. I agree with the majority regarding the dismissal of the 42 U.S.C. § 198 3 claim and that

recovery under the Mississippi T o rts Claims Act, Miss. Code Ann. §§ 11-46-1 to 11-46-23

(Rev. 2002 & Supp. 2004), is bar red. I also agree that Williams does have a cause of action

for breach of contract and mental anguish resulting from the breach. However, I disagree with

the result the majority reaches. I would reverse and remand for a new trial on both liability and

damages on the breach of contract claim. Therefore, I respectfully dissent in part.

¶51. The damages awarded in thi s convoluted trial, as the majority points out, were too

speculative based upon the evidence presented at trial. However, the majority reverses and

remands for a new trial only on the issue of dam ages. The majority fails to recognize that this

damage award c learly evinces bias and prejudice on the part of the jury. In my view, allowing27

evidence of the torts associated with the Mississippi Torts Claim Act infected the entire trial.

This Court cannot reasonably ascertain whether the jury found actual liability or was prejudiced

by the intro duction of the torts that should never have been brought before the jury because

they were barred under the Mississippi Torts Claim Act. The result would have been vastly

different had the jury only been allowed to consider the breach of contract issue a nd the torts

associated with the mental anguish resulting from the breach.

¶52. In my separate opinion in Gamble v. Dollar Gener al Corp. , 852 So.2d 5, 21 (Miss.

2003) (Smith, P .J., concurring in part and dissenting in part), I concluded that the damage was

already done because the extensive prejudicial and irrelevant evidence was already placed

before the jury, and I would have reversed and remanded for a new trial on the issue of liability

and damages. This is the same situation in the case sub judice. The trial judge allowed all of

the issues to be tried together, and this improper evidence clearly influe nced the jury as shown

by the amount of damages the jury awarded to Williams.

¶53. In Gamble

, I cited a Third Circuit case which held that evidence submitted on one claim

can have an improper effect on anoth er claim. Rush v. Scott Specialty Gases, Inc. , 113 F.3d

476 (3d Cir. 1997). In that case the district court found that Rush’s failure to promote and

train claim was not time b arred. I d. at 483. The Third Circuit reversed the district court

finding that the failure to promote and train claim was time barred and the i ntroduction of

evidence with respect to this claim infected the entire trial. I d. at 480. It held that “the

presence of the failure to promote and train claim and the introduction of evidence related to

and supporting that claim infected the jury’s liability verdicts on the sexual harassment and

constructive discharge claims as well as the verdict for the damages.” Id. at 485.28

¶54. As the majority correctly points o ut, the tort claims under the Mississippi Torts Claim

Act are barred. It is obvious from the record that both the plaintiff and defendants treated this

case as a Tort Claims Act case and proceeded to trial with the understanding that the trial judge

would ultimately decide the Tort Claims Act issue se parate from the jury. However, evidence

of those torts was wrongly brought before the jury. In my view, the admission of this evidence

infected the entire trial as to both liability and damages. As the court in R ush held and as I

stated in my separate opinion in Gamble

, the introduction of the evide nce relating to the claim

in fected the jury’s liability verdict as well as the verdict for damages. It is also not possible

to ascertain what portions of the damages were attributable to the time-barre d torts claim.

Furthermore, I am unable to find that the evidence of the time-barred torts action did not affect

the jury’s verdict on liability as to the other claims. I would therefore reverse and remand for

a new trial on both liability and damages on the breach of contract claim.

¶55. For these reasons, I respectfully concur in part and dissent in part.

EASLEY, JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:

¶56. I respectfully concur in part and dissent in part with the majority’s opinion today.

¶57. In the second issue entitled as the “denial of JNOV re: Williams’s contact claim” the

majority addresses a bre ach of contract claim and whether a plaintiff can recover for mental

anguish and emotional distress. Indeed, the majority finds that, despite conflicting testimony,

“there is su

fficient evidence that USM and its employees breached the duty of good faith and

fair dealing in their relationship with Williams.” The majority also holds that “[t]here is

evidence that USM and its employe es knowingly conducted themselves in ways which violated

standards of decency, fairness, and reasonableness.” I agree.29

¶58. The majority attempts to clarify the emo tional distress issue for breach of contract

actions. While the majority found that a claim for mental anguish and emotional distress for

the breach of contract to be both foreseeable and recoverable, the majority found that Williams

could only recover damages from USM for breach of contract and not the tortious conduct of

Stamper.

¶59. Arguably, the majority is correct in determining that USM is not respons ible for the

initial assault by Stamper. However, in order for a jury to have a clear understanding of the full

scope of breach of contract and the mental anguish and emotional distress issues, I believe that

the jury is entitled to hear about the tortious act. Otherwise, the jury will not have an

understanding of the foundation of Willi ams’s claims. The majority alludes to carefully

constructed jury instructions. This suggestion is not without merit. However, I am concerned

that the jury needs full knowledge of the tortious actions of Stamper and othe r staff, in order

to make a properly informed decision on the breach of contract and mental anguish and

emotional distress issues as pertain to any potential liability on the part of USM.

¶60. USM was put on notice numerous times concerning the actions of it s employees,

Stamper and others. USM did nothing to stop the actions of its staff from impeding Williams

in her pursui

t of a Ph.D. USM had knowledge of its staff’s actions which ultimately hindered

Williams f

rom receiving her diploma and USM refused to protect and assist its student in

completing

her education despite knowing the actions of its staff. USM allowed its staff to

continue to act in an inappropriate, unprofessional manner toward its student and therefore

acquiesced to staff behavior to the detriment of its student.30

¶61. Here, Williams testified that she complained to Dean Harper and to the English

Department Chair Wheeler concerning Stamper’s actions. Indeed, Williams notified USM on

a number of occasions that she was having problems with USM staff. These actions would

consequently affect her ability to receive her diploma. Williams claimed that Stamper went

to her home to discuss dissertation revisions in August or September 1990 and also assaulted

her. Williams promptly reported the incident to Dean Harper, the Dean of the College of

Liberal Arts and Dr. Wheeler. Thus, USM was on notice of the actions of Stamper that

ultimately interfered with the receipt of her diploma. Part of an agreement was to remove

Stamper from her dissertation committee. However, Stamper later testified that he was not

notified of his removal from her committee. Another professor testified that USM never

notified him that he was now on Williams’s committee.

¶62. In May 1991, Williams again notified Dean Harper of another staff’s inappropriate

behavior and informed him of Stamper's continued unwanted contacts. In December 1995,

Williams yet again sent a letter to Dean Harper informing him t hat she was still being harassed

and asking for his assistance. In January 1996, a graduate director responded to Williams's

concerns expressing sympathy but providing no assistance or resolution for Williams's

complaints. Further, Williams attempted to contact McCraw, the newly assigned dissertation

chair, for four years without any response. Williams finally had a meeting with USM

personnel. USM failed to follow-up on the meeting. Following this, Williams requested a

status report and received no response. Therefore, she filed suit.

¶63. Again, it is arguable that USM had nothing to do with the initial assault by Stamper.

However, the above facts demonstrate that Williams p romptly placed USM on notice of31

Stamper’s actions. It is disputed as to whether Williams told USM official of an “assault” or

merely inappropriate behavior. Nevertheless, USM had almost immediate notice of these

actions. Once USM had notice of these actions, including continued actions by Stamper and

subsequent actions by various other staff members, USM did nothing to assist Williams with

these hindrances and obstacles to her diploma. While carefully constructed jury instructions

may be warranted, the ju ry also has to have an opportunity to truly appreciate the nature of the

actions or lack there of by USM in confronting the problems Williams faced and her eventual

inability to obtain her diploma.

¶64. USM’s indifference to the adve rse conduct towards Williams sends a terrible message

to all women on every college campus. USM had a duty to protect all of its students and staff,

regardless of gender or position. Discrimination and harassment by USM staff towards a

stud ent cannot be tolerated. USM’s actions or lack of action in this case has made Williams

a victim. I would affirm the denial of the JNOV. In addition, I would remand to the trial court

on the issue of damages and allow the jury to hear the complete facts, including the tortious

acts of Stamper, in order for the jury to have a thorough understanding of Williams's basis for

her breach of contract claim. For the above reasons, I must respectfully concur in part and

dissent in part.