2004 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit
12-21-2004 

# P o c iut e v . W es t C hes t e r Uni

v P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al D ocke t N o . 03-4748

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Thi s de c i sion i s br ou gh t t o you for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit at V i l l a no va U nive r sit y S choo l of L a

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. It h as be e n a c c e pt e d for inclusion in 2004 D e c i sion s b y a n author i z e d a dmini s tr at or of V i l l a no va U nive r sit y S choo l of L a

w Di g it al Re posit or y

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w . v i l l a no va . e du/thir dc ir c uit_2004/50NOT PRECEDE NTIAL UNITED STATES COURT OF APPEALS FO R T HE TH IRD CIR CU IT

___________ NO. 03-4748

___________ JURGITA POCIUTE, Appellant

v. WEST CHESTER UNIVERSI TY; MADELI NE WING ADLER;

JAMAL GHOR OGHC HIAN, PROF.

___________ On A ppeal from the Un ited States District Co urt for the Easte rn D istrict of P enns ylvania (D.C. Civi l No. 02-cv- 09113) Distri ct Judge: Honorable Clar ence C. Newcomer

___________ Argued December 13, 2004 BE FO RE : AM BR O, V AN AN TW ER PE N a nd S TA PL ET ON , Circuit Judges
. (Fil ed December 21, 2004) Nancy C. DeMis, Esq. (Argued) Gal la ghe r, Sch oen fel d, Surki n & Chup ei n, P. C. 25 West Second Stree t Media, PA 19063-0900 Counsel for Appell ant
Ge rald P appe rt, Attorn ey Gen eral, C om mo nw ealth o f Pe nnsylva nia2

Randall J. Henzes, DeputyAttorneyGeneral (Argued) Calvin R. Koons, Senior DeputyAttorneyGeneral John G. Knorr, I II; Chief Deputy AttorneyGeneral; Chief, Appell ate Litigati on Section Office of Attorney General 21 South Twelfth St

reet Third Floor Philadelphia, PA 19107-3603 Counsel for Appell ee

___________ OPI NION

___________ VA N A NT W ER PE N, Circuit Judge , I. FACTS Bec ause we write o nly for the parties, w e limit ou r discu ssion to those facts perti nent to our

decisi on. Appell ant Jur gita Poci ute fi led sui t agai nst West Chester Universi ty (“West Cheste r”), its presi dent Madeline Adle r, and Pr ofessor J amal Gh oro ghc hian in D ece mb er 2 002 . (A ppe llant Bri ef a t 3.) T he s uit al lege d, inter alia, that Gh oro ghc hian sex ually h aras sed Po ciute wh ile sh e w as a stud ent a t W est C hes ter. Id . A t the cl ose of dis covery , the Distri ct Court di smissed t he clai ms against

Adler, but

held that Pociute c ould procee d on her claims agains t West Cheste r for vi olati on of Titl e IX of the Civil Ri ghts Act of 1964, as amended, 20 U.S. C. § 1681, and t he Pennsy lvania

Human Relati ons Act, 43 P. S. § 951 et seq . Id . at 2-4. A jury t

rialwas held November 17-20, 200 3. Id . at 2. During the trial, Pociute introduced testi mony that a third party, Professor Melissa3

Cich ow icz, rep orted c once rns reg arding Gh orog hchia n’s co ndu ct with fem ale stud ents to Luz Hernandez, West Chester’s Director of the Office of Soci al Equity, prior to the
eve nts w hich gav e rise to th is litiga tion
. Id . at 4-5. A portion of the testimony went a s follows: M S. D EM IS: Had you als o spoken with Miss Luz Hernandez regardi ng

these same concerns? MS. CICHOWICZ: That is my recoll ection, y es. M S. D EM IS: And when, relative to s peaking t o the dean, had you done

that? MS. CICHOWICZ: I beli eve that it was whil e I was working i n the dean’ s office, sometime between 1999 and 2001.

. . . . M S. D EM IS: W hat r esp ons e, if a ny, did you g et fr om the – strik e tha t.

We re you g iven a ny guid ance from the of fice o f soc ial equ ity as to what you should or could do in these circumstances? M R H EN ZE S: O bj ec tio n, Y ou r H on or . T he an sw er ca lls fo r h ea rsa y. M S. D EM IS: Your H onor, I think admission of a partyopponent. That is a

repres entative of the office. TH E C OU RT : Overruled. M S: D EM IS: Were you given any information as to what you could do as a

– in response to these concerns? MS. CICHOWICZ: My recollection i s – TH E C OU RT : No, the answer i s ye s or no.

. . . . MS. CICHOWICZ: Yes. MS. DEM IS: What w as that? What were those instructions? TH E C OU RT : No , I will su stain the objec tion as to that qu estion. T hat

w ou ld be he ar sa y. M S. D EM IS: Yo ur H ono r, I believ e it wo uld b e adm ission o f a pa rty

op po ne nt , th e O ff ice of So cia l E qu ity. TH E C OU RT : Cou nsel, once I rule, the ga me is ove r. MS. DEM IS: Than k you, You r Hon or.

. . . . MS. DEM IS: Did Ms. Hernandez do any thing i n terms of cont acti ng you or

anything else to you r kno wled ge to f ollow up o n your re ports of complaints about Dr. Ghoroghc hian – strike that. Did Ms. He rnan dez d o anythin g to fo llow up w ith you on your rep orts4 about y our concerns regardi ng Dr. Ghoroghchian? MS. CICHOWICZ: Not that Irecal l, no. (Appellant

App. at A-39 to A-43. ) Hernandez was als o call ed as a witne ss, but was
una ble to reca ll hav ing suc h a c onv ersa tion wit h C icho wic z. Following t

he tri al, the jur

y r eturned ve rdict s agains t Ghoroghchian and in favor of We st Ch ester, fin ding that Po ciute h ad no t prov ed tha t “an a ppro priate p erson with authori ty to ins tit

ute correcti ve measures at West Chester Unive rsit y had notice of defendant Ghoroghchi an’s sexua lly harassi ng conduct of st udents before January26, 2001 and fail ed to adequatelyrespond. ” Id . at A-78. Pociute now appeals the District Court’s e ntryof judgment i n favor of West Chest er upon the grounds that Cichowicz should have bee n permitted to answer when asked about what inst

ructi ons Hernandez gav e he r. II . J URISDICTI ON AND STAN DARD OF REVIEW The Distri ct Court ha d juri sdiction of thi s matter pursuant to 28 U.S.C. §§ 1331 and 1367(a). This Court has juri sdiction over t he District Court ’s order pursuant to 28 U.S.C. § 1291. We generally review the tri al court ’s admiss ion of evi dence for abuseof discre tion, ho we ver, w hen a dm issibility involv es a leg ally set stand ard o ur rev iew is plen ary. Savarese v. Agriss , 883 F.2d 1194, 12 00 (3d C ir. 1989). III. ANA LY SIS Pociute argues that theDistri ct Court a cted i mproperly by not allowing Ci chowicz to answer the question regarding the inst ructions she received from Luz Hernande z, West1 Federal Rule of Evidence 801(d)(2) (D) explains that a statement is not hearsay if “[t]he statement is offered against a party and is . . . a statement by the pa rty's a gent or servant concerning a matter within the scope of the agency or employment, made dur ing the existence of the relationship.” 5 Chester’ s Direct or of the Offi ce of SocialEquity . According to Pociute, the Dist rict Court erred in rul ing that the answer t o the question was inadmis sibl e hearsay because the conversation amounted t o an admissi on by a party -opponent and f ell wit hin the he arsay
ex ce pt io n of

Fed er al Rul es of

Evi de nc e Ru le 801 (d )( 2) (D) 1

. Pociute c ites this Court’s de cisi on in Abrams v. Light olier Inc. , 50 F.3d 1204, 121 6 (3d Cir. 19 95), to s upp ort her positio n that a n em ployee m ay testify as to sta teme nts made by a supe rvisor

regardi ng company pol icy . In Abrams , we exp lained that “[w ]here a supervi sor is authori zed to speak with subordi nates about the employ er' s employ ment practi ces, a s ubordinate's account of an expl anati on of the supervisor' s underst anding regardi ng the cri teri a util ized bymanagement in making de cisi ons on hiri ng, fir ing, compensati on, and the likeis admis sibl e against the employ er.” Id
. Appellee does not dis pute Pociute’s l egal concl usions on t his matter. I n light

of our decis ion in Abrams , and the plain m eaning o f Fede ral Rule of Eviden ce 801 (d)(2)(D), we conclude that

the Dist rict Court erred in ref

using t o allow Cichowicz to answer the questi on. Anticipating t

his deci sion, West Chester c onfines i ts ar gument to the premise t hat the D istrict Co urt’s erro r wa s harm less. W est C hester argu es that th e exc luded answ er to the question would have added not hing because Cichowicz est ablis hed the el ements for6

liabi lit y when she t esti fied without objec tion t hat she gave noticeto Hernandez and t hat He rnan dez d id no thing to follow -up. (A ppelle e Brie f at 10 .) Acc ordin g to P ociute how ever, th e Co urt’s ex clusion of the answ er to the ques tion lef t the jury w ith “uncontra dicte d testimony t hat Cichowicz’ s bringi ng the matter to Hernande z would have resulted in action.” (A ppellant Brief at 13.) Acc ording to P ociute’s offe r of proof , “Dr. Cich ow icz w ould have stated th at she w as ad vised by M s. He rnan dez th at no u nivers ity action cou ld be taken unless studen ts were ‘w illing to attach their name s to a com plaint.’ . . . Dr. Cichowicz would have testified further that she was told at the time of these
co nve rs atio ns , i n 19 98- 99, th at th is was of

fi ci al uni ve rs it

y pol ic y .” (Ap pe ll an t Ap p. atA66.) In a se xual h arassm ent su it broug ht un der the implie d righ t of ac tion un der T itle IX, “d ama ges m ay not be recov ered . . . un less an offic ial of th e sch ool d istrict wh o at a minimum has authority to ins tit ute correcti ve measures on t he dist rict 's be half has a ctual noticeof, and i s deli berate ly indiff erent to, the teacher 's mi sconduct. ” Gebser v. Lago Vista Inde pend ent S choo l Dist. , 524 U.S. 274, 277 (1998). In thi s case, the jur y found that Po ciute h ad no t prov en “b y a prepo nder ance of the evide nce th at an a ppro priate person with authori ty to ins tit ute correcti ve measures at West Chester Unive rsit y had notice of d efenda nt Gho roghch ian’s sexual ha rassing con duct of stud ents befo re January 26, 2 001 and faile d to ade qua tely res pon d.” ( Ap pella nt A pp. a t A- 78.) Assuming that

Hernandez was a person wit h authori ty to ins tit

ute correcti ve measures, only two plausi ble expl anati ons can be deri ved from the j ury finding: (1)7

Pociute fa iled to establish that W est Chester h ad notice o f Gh oroghc hian’s con duct befo re Janu ary 26, 20 01, or (2) Po ciute f ailed to establish that W est C hester failed to ade quate ly respond. It appears from the record t hat West Chest er claimed it never rec eived notice of Ghoroghchian’s conduct pri or to January 26, 2001, and accordi ngly West Chester made no cla im tha t it respon ded a dequ ately. The issue th en, is w hethe r it is highly pro bable that, had Cichowicz been permitt ed to answer t he questi on, the jurysti ll would have found that

West Chester was not

on noticeof Ghoroghchian’s conduct befor e January26, 200 1. “[A ] cou rt can f ind tha t [non -con stitutiona l] errors a re harm less on ly if it is highly probable t

hat theerror s did not

affect t he outcome of the case.” McQ ueeney v. Wilmington Trus t Co. , 779 F.2d 916, 917 (3d Cir. 1985). Thi s standard has been descri bed as “moderatelystri ngent, though not unreasonably high,” id , at 9 27, an d we need only“be well- sati sfied t hat theerror

did not prejudic e a party, but we need not disproveeveryreasonabl e possibi lit y of pr ejudic e,” Gene ra l Mot or s Cor p. v. New A. C. Chevrolet , Inc. , 263 F.3d 296, 329 (3d Cir. 200 1). Pociute’ s onlyclai m regarding t he importance of Cichowicz’s answer is t hat “[h] er testimony . . . could explain w hy there was n o eviden ce of an y investigation whe re He rna nde z w as u nab le to r eca ll w heth er sh e ha d he ard of c onc ern s fro m C icho wic z. Withou t that testimony, the jury was left with un contradicted testim ony that Cichow icz’s bringing the m atter to Herna ndez w ould hav e resulted in action.” (A ppellant A pp. at 13.) Poc iute’s cla im is u nper suasiv e. To begin with , We st Ch ester is co rrect w hen it2 

### In fact, Pociute’ s counsel specifically

tried t o ask Herna

ndez, “Would y ou have advised Mi ss Cichowicz that she needed to have the

individual

bring a si gned compl aint before you were able t

o do anything about it?” (Appellant App. at A-60.) However, defense counsel objected and the Court sustained the objection, and thus there never was such testimony. Id
. 8 claim s that C ichow icz’s testim ony, as p resen ted, w as suf ficien t to estab lish the e leme nts for liability under Gebser , 524 U.S. at 277. Ci chowicz tes tifi ed that sometime between 1999 and 2001 she gave notice t o Hernandez and nothi ng was done. Cichowicz’ s answer would not have addr essed whether notice was given. Ther efore, the val ue of the excluded
answ er rests solely on the claim by Poc iute that it would h ave bo lstered Cicho wicz’s credibi lit y byexplai ning why there was no evide nce of any investigati on in view of the “uncontra dicte d testimony” of Hernandez that

a complaint

would have resul ted in a ction. However, we have reviewed the record and there e xist s no such “uncont radicted testimony” by

Hernandez that

a complaint

would have resul ted in a ction. Hernandez testified that ha d som eone com e to he r with third-p arty com plaints o f sex ual ha rassm ent, she would have advi sed that person t o tryto bri ng the st udents t o her offic e so that she could go over the procedures with the students. (Appellant App. at A-59.) She also testifie d that s he could i nvesti gate complai nts about sexual har assment wit

hout a writ

ten
com plain t. Id . However, at no point di d Hernandez give any indication as to what she would or would not have done had she been pre sented wit h the complai nts that Cichowicz testifie d she had made. 2 Pociute ha s offered no ot her suggest

ion as t o how the excluded ans wer would have affected t

he outcome of thi s case. Since it would not have helped to est ablis h noticeor9

bolster ed C ichow icz’s cre dibility, it did no t prejud ice Po ciute a nd it is h ighly prob able that t he ju ry wo uld hav e rea che d th e sa me con clus ion
. For th e abo ve rea sons , we a ffirm the jud gm ent an d ord er of th e D istrict Co urt.