BETH GODFREY et al. v. PRINCETON THEOLOGICAL SEMINARY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1957-05T21957-05T2

BETH GODFREY and

JENNIFER BAYNE KILE,

Plaintiffs-Appellants,

v.

PRINCETON THEOLOGICAL SEMINARY,

Defendant-Respondent.

________________________________________________________________

 

Argued March 21, 2007 - Decided May 15, 2007

Before Judges Cuff, Winkelstein and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1011-03.

Amy Beth Dambeck argued the cause for appellants (Stark & Stark, attorneys; John E. MacDonald, of counsel; Mr. MacDonald and Jason A. Storipan, on the brief).

Brian P. Sullivan argued the cause for respondent (Stevens and Lee, attorneys; Brian P. Sullivan, of counsel; Mr. Sullivan, Bradley L. Mitchell and Nanette M. Embres, on the brief).

PER CURIAM

Plaintiffs, Beth Godfrey and Jennifer Bayne Kile, were enrolled as students at defendant Princeton Theological Seminary (Seminary), when they received unsolicited and unwanted attention from William Miller, a 1964 graduate of the Seminary who, since 1965, had lived in Seminary-owned housing, located in West Windsor, four miles from campus. Miller's contacts with plaintiffs consisted of conversations, mail, phone messages and invitations to dinner. Other than on one occasion in December 2000, when Miller briefly took one of Godfrey's hands in both of his, there was never any physical contact between Miller and either plaintiff. Miller never made a sexual comment to either of them, never made any reference to their bodies or his, and never included anything of a sexual nature in any of the correspondence he sent.

In April 2003, plaintiffs filed a complaint against the Seminary alleging violations of the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49; Title IX of the Education Amendments of 1972 (Title IX), 20 U.S.C. 1681(a); negligence and breach of contract. They alleged that they were sexually harassed by Miller, and that the Seminary failed to take appropriate steps to protect them from him after they complained to the administration. The Seminary's motion for summary judgment was denied, and trial began on October 18, 2005.

After plaintiffs rested on October 24, 2005, the Seminary moved for involuntary dismissal of plaintiffs' case, pursuant to Rule 4:37-2(b). After reviewing the evidence adduced at trial, together with the legitimate inferences therefrom, the judge granted the Seminary's motion.

On appeal, plaintiffs argue that the judge erred in finding that they had not presented sufficient evidence to survive a motion for involuntary dismissal. We disagree, and affirm.

I.

Jennifer Bayne Kile

Kile enrolled at the Seminary in the fall of 1999 in its Masters of Divinity Program. The Seminary is a professional and graduate school, located in the Borough of Princeton, whose campus and facilities are open to the public.

Kile's first encounter with Miller occurred in the fall of 1999, when he approached her in the campus library where she worked on a part-time basis and asked her for the phone numbers of two students. Later that fall, he came into the library on two other occasions, both times showing her news articles of a religious nature. No library business occurred during any of these contacts, but Kile acknowledged that at no time did Miller touch her, use obscene language, tell off-color jokes, discuss sexual interaction or ask her to go out on a date. After the third encounter at the library, Kile did not see Miller or speak to him again until twenty months later in the Spring of 2001.

Although she did not see or speak to him during that period, she did receive two packages from him between December 6 and December 27, 1999 containing a total of seven pieces of correspondence, consisting of copies of letters he had received thanking him for library donations, newsletters with religious themes and a Christmas card bearing a photograph of him. On each, Miller had written a two or three sentence innocuous greeting. None included any sexual references, obscene material, sexual innuendo or requests for any personal contact. She received nothing further until April 18, 2000, when she received a mass e-mail describing a religious conference.

In the spring of 2001, twenty months after her last in-person encounter with Miller in the library, Kile encountered him in the cafeteria where he was seated at a table. He called to her by name and asked for her address in England. Miller apparently knew that Kile was about to return to England where she was studying while on a one-year leave of absence from the Seminary. At Miller's request, she provided him with her e-mail address. After leaving the cafeteria, Kile attended a religious service at the Seminary chapel, and after it was concluded, Miller approached her, stating that he had gone to the chapel because he knew that he could find her there.

When she returned to England, she received an e-mail from Miller, who was visiting his sister in London, inviting her to join him for an evening church service in London and supper afterward. She did not respond. In the fall of 2001, Kile returned to the Seminary, and on November 5, she received another mass e-mail sent to men and women, in which Miller described meeting a man named Lazarus in the Seminary cafeteria. Kile had no contact with Miller again until October 15, 2002, when she saw him sitting in the cafeteria with another man. If Miller saw her, he neither approached her, nor said anything to her. Although there was no interaction between the two, Kile felt uncomfortable and left the cafeteria.

Thus, in the three and one-half years that elapsed between the fall of 1999, when Miller first approached Kile in the library, and April 2003 when she filed the complaint, her face-to-face encounters with Miller were limited to his three visits to the library in the fall of 1999 and his conversations with her in the cafeteria and outside the chapel one morning in the spring of 2001.

Beth Godfrey

Godfrey enrolled in the Masters of Divinity Program in the summer of 2000. The first communication between Godfrey and Miller occurred in the fall of 2000 in the Seminary cafeteria, when Godfrey sat down at a table where Miller and some of her friends were already seated. She did not know who he was, but assumed he was a retired professor or someone within the Seminary community who happened to be at the cafeteria conversing with students. Miller made no effort to engage Godfrey in conversation.

Godfrey next saw Miller at one of the weekly Friday night Fellowship meetings. Those meetings were a weekly event organized by students during which participants discussed life and religion, both during the formal portion of the event and informally thereafter. Godfrey testified that Miller was at seven Fellowship meetings in the fall of 2000, but on none of these occasions did he seek her out or discuss anything of a sexual nature during any of the group conversations.

After that, Godfrey's face-to-face contact with Miller was limited to three incidents, the first occurring at a December 2000 Christmas dance, the second at a card shop in a local mall a week later, and the third in the Seminary cafeteria in August 2001. The balance of Miller's contact with Godfrey was either by mail, in telephone messages or occurred in large group settings, in which he made no effort to approach her.

During the December 2000 Christmas dinner and dance, Miller walked up behind Godfrey, tapped her on the shoulder and as she turned around, he took one of her hands into both of his, stating it was good to see her. Godfrey pulled her hand away. Miller then invited her to join him at a concert that evening, which she declined, explaining that she had made plans to go caroling after the dinner. Although she declined, a few moments later he renewed the invitation, adding it would be a lovely concert and that he would like to share the evening with her. Later that night, she again ran into Miller when she was out caroling, despite his having earlier told her that he had concert tickets. During the caroling, Miller never came closer than three feet to Godfrey and made no effort to initiate any conversation with her.

One week later, Miller encountered Godfrey by chance at a card shop in a local mall where she was shopping with a friend. Miller tried to engage them in conversation. A few days later, Godfrey received from Miller a box of note cards and a Christmas card with holiday greetings and some information about Miller's family. Nothing in the Christmas card made any reference to Godfrey. She sent him a thank you card addressed to "Bill," in which she wrote "[t]hanks for the card and the note cards I received in the mail today. May you sense God's peace in Jesus Christ this Christmas. Beth Godfrey."

Godfrey had no further contact with Miller, either in person or by mail, for another eight months. In August 2001, when Godfrey was in the Seminary cafeteria, Miller approached her and asked her to join him for lunch. Initially she answered no, but when Miller asked again, she agreed to join him for lunch, but only if other people were at the table.

One week later, she returned home from a brief trip, checked her voicemail and discovered that Miller had left a message inviting her to a concert and dinner, to which she did not respond. Later that day Miller left another message, this time asking her to join him at church and lunch the following day. Godfrey did not respond to this second message either, and the next morning he called back a third time, leaving a message inviting her to a picnic. Again, she did not respond. Later that morning, Miller left one last message stating in part "good Christian women call men back when they are asked out." Nothing of a suggestive or sexual nature was contained in any of the four messages.

After leaving these messages and receiving no response from Godfrey, Miller apparently recognized that Godfrey had no interest in joining him for lunch, dinner, church or picnics. He never again initiated any contact with her and made no effort to persuade her to reconsider her obvious disinterest. Godfrey did not see him again until October 24, 2002, when he was standing with a group of people in the middle of the cafeteria and waved to her. On that occasion, he neither approached her, nor made any effort to engage her in conversation. Godfrey did not see him again until the trial on October 18, 2005.

Seminary's response

The first time either plaintiff complained to the Seminary administration was in January 2000. Kile was the first to do so, during an impromptu conversation in the Seminary cafeteria with the Dean of Academic Affairs, Jeffrey O'Grady. She informed O'Grady that she had received two unsolicited packages from Miller and felt uncomfortable about the situation. Acting upon Kile's complaint, O'Grady looked for Miller on several occasions on campus, but was unsuccessful. O'Grady finally reached him by telephone and told him that his attempt to befriend a certain female student was "unwelcomed and unwanted." During that conversation, O'Grady directed Miller to limit his contacts or friendships to male Seminary students. Following the warning, neither O'Grady nor the Seminary received any further complaints regarding Miller, until twenty-months later in August 2001.

At that time, Godfrey made an appointment to meet with O'Grady after having received the four telephone messages from Miller a week or so earlier. Godfrey and another student complained to O'Grady that Miller was "harassing them," but neither described the harassment as "sexual." They requested that O'Grady ban Miller from visiting the cafeteria because most of Miller's contacts with Seminary community members seemed to occur there.

On September 4, 2001, Kile sent O'Grady an e-mail in which she too complained about Miller's recent behavior. The e-mail stated, "[h]e also approaches in a way that is uncomfortable but not illegal, and hard to prove as harassment." Her e-mail concluded with the statement, "I appreciate your talking to him, and I am very sorry that you have to do so, particularly with little hard evidence of anything." The same day O'Grady received Kile's e-mail, he wrote to Miller instructing him that he was prohibited from visiting the cafeteria unless attending an event to which the public had been invited. Godfrey testified that she was satisfied with the actions taken by O'Grady in response to her complaints and believed his response was appropriate at that time.

Following the implementation of the September 4, 2001 cafeteria ban, the Seminary administration received no further complaints regarding Miller until October 2002, when Kile and Godfrey reported to O'Grady that Miller had been observed in the cafeteria during a Halloween event. O'Grady learned that campus security was aware of Miller's presence in the cafeteria during that event, but did not eject him because they erroneously believed it was a public event, which Miller would have been entitled to attend. In response to that violation, O'Grady informed security of their error, and instructed them that the upcoming Christmas dinner was not open to the public, and if Miller were to attend, he should be removed.

On November 6, 2002, O'Grady met with Kile and Godfrey to discuss their concerns about Miller's Halloween violation. During that meeting, for the first time, Kile and Godfrey characterized the harassment by Miller as "sexual." O'Grady agreed to invoke the persona non grata policy contained in the Seminary Handbook and to accordingly send Miller an official notification that he was banned from the entire campus. Later, O'Grady reconsidered and notified plaintiffs by mail that he did not believe such action was warranted.

The day after O'Grady's November 6, 2002 meeting with plaintiffs, he again wrote to Miller, reminding him of the continued existence of the ban and emphasizing that because certain upcoming holiday dinners were not events to which the public was invited, Miller was prohibited from being present.

Notwithstanding the November 7, 2002 letter, another student reported that she observed Miller in the cafeteria on November 23, 2002, and a second student reported observing him on November 24. The student who reported seeing Miller on November 24 was aware of the ban and consequently notified campus security. Security promptly came to the cafeteria and escorted Miller out of the building. The next day, November 25, 2002, the president of the Seminary, Thomas W. Gillespie, learned that Miller had been seen in the cafeteria on November 23 and 24, in violation of the terms of O'Grady's two letters. In response, Gillespie directly wrote to Miller, warning that any further violation of the cafeteria ban would be "addressed to legal authorities."

After Gillespie's November 25, 2002 letter, there was no further contact between Miller and Godfrey. As to Kile, her only contact with Miller after Gillespie's November 25, 2002 letter consisted of being copied on three mass e-mails that Miller sent to numerous recipients, both male and female. All three e-mails were religious in nature.

Miller testified that he was unmarried and that those who are single tend to be searching for a partner to marry. He explained that he views all relationships as "open-ended," and when trying to begin a friendship with a woman, marriage is always a possibility.

After plaintiffs rested, defendant moved for involuntary dismissal, which the court granted, finding that plaintiffs had failed to establish a prima facie case of sexual harassment. Specifically, the judge concluded plaintiffs had presented insufficient evidence to establish that Miller's contact with them occurred solely because of their gender, and that the conduct at issue was severe or pervasive enough to make a reasonable woman believe that the conditions at the Seminary were hostile or abusive.

II.

A trial judge should deny a Rule 4:37-2(b) motion when "the evidence, together with the legitimate inferences therefrom, could sustain a judgment in favor of the party opposing the motion." Dolson v. Anastasia, 55 N.J. 2, 5 (1969). As it evaluates the motion, "[t]he trial court is not concerned with the worth, nature or extent . . . of the evidence, but only with its existence, viewed most favorably to the party opposing the motion." Id. at 5-6. On appeal, we apply the same standard applied by the trial court. Craggan v. Ikea U.S., 332 N.J. Super. 53, 61 (App. Div. 2000).

The LAD provides in pertinent part that "[a]ll persons shall have the opportunity . . . to obtain all the accommodations, advantages . . . and privileges of any place of public accommodation . . . without discrimination because of . . . [the person's] sex . . . . This opportunity is recognized as and declared to be a civil right." N.J.S.A. 10:5-4. The LAD further provides that it shall be unlawful for "any owner, . . . manager, . . . or employee of any place of public accommodation directly or indirectly to refuse, withhold from or deny to any person any of the accommodations, advantages, facilities or privileges thereof, or to discriminate against any person in the furnishing thereof . . . on account of . . . [the person's] sex . . . ." N.J.S.A. 10:5-12f(1).

Although N.J.S.A. 10:5-12 explicitly provides protection against discrimination in the employment context, the protections of the LAD extend to non-employment situations as well, including schools and educational settings. L.W. v. Toms River Reg'l Schs. Bd. of Educ., 189 N.J. 381, 402 (2007). "'[T]he right of a student to . . . [be] free from sexual harassment is certainly as important as the rights of an employee in a work setting.'" Ibid. (quoting K.P. v. Corsey, 228 F. Supp. 2d 547, 550 (D.N.J. 2002), rev'd on other grounds, 77 Fed. App'x. 611 (3d Cir. 2003)).

In order to establish a prima facie case of a hostile environment due to sexual harassment under the LAD, a plaintiff must establish four elements: "the complained-of conduct (1) would not have occurred but for the employee's gender, and it was (2) severe or pervasive enough to make a (3) reasonable woman believe that (4) the conditions of employment are altered and the working environment is hostile or abusive." Lehmann v. Toys 'R' Us, 132 N.J. 587, 603-04 (1993). An employer will be liable for compensatory damages whenever "the employer has actual or constructive knowledge of the harassment and fails to take effective measure to end the discrimination." L.W., supra, 189 N.J. at 403 (citing Lehmann, supra, 132 N.J. at 622-23).

Under the first prong of the Lehmann standard, plaintiffs must demonstrate that the harassment would not have occurred unless they were women. Lehman, supra, 132 N.J. at 603. "In the majority of hostile work environment cases, the harassing conduct takes the form of unwelcome sexual touching and comments. However, the harassing conduct need not be sexual in nature; rather, its defining characteristic is that the harassment occurs because of the victim's sex." Id. at 602. We disagree with the trial judge's conclusion that plaintiffs failed to satisfy this prong. Giving plaintiffs the benefit of all favorable inferences to which they are entitled, Dolson, supra, 55 N.J. at 5, the jury could reasonably have determined based on the evidence adduced at trial that Miller's contact with Kile and Godfrey occurred only because of their gender. When asked whether he was approaching either plaintiff with the intent to further a possible romantic relationship, he answered, "[e]very relationship is open-ended . . . . I was interested in friendship with those to whom I was attracted and who seemed friendly in response. . . . [T]herefore, yes, in that sense [a romantic relationship is] an open-ended possibility." Thus, a jury could have found that Miller only interacted with plaintiffs because of their gender.

Under the second prong, a plaintiff must show that the conduct complained of was "severe or pervasive." Lehmann, supra, 132 N.J. at 603. We agree with the trial judge's conclusion that the jury could not have reasonably found Miller's interaction with Kile and Godfrey satisfied that prong.

In determining whether conduct satisfies the second prong, the Court in Lehmann observed:

the second, third, and fourth prongs, while separable to some extent, are interdependent. One cannot inquire whether the alleged conduct was "severe or pervasive" without knowing how severe or pervasive it must be. The answer to that question lies in the other prongs: the conduct must be severe or pervasive enough to make a reasonable woman believe that the conditions . . . are altered and her . . . environment is hostile.

[Id. at 604.]

The test is an objective one, not a subjective one, id. at 612, as plaintiffs incorrectly suggest. The Court also "emphasize[d] that it is the harassing conduct that must be severe or pervasive, not its effect on the plaintiff or on the work environment." Id. at 606.

Our dissenting colleague focuses on each plaintiff's reaction to Miller's conduct, describing Kile as "constantly . . . on the lookout for him" and "freaked out" and "stalked." Godfrey is described as "distressed" by his presence and as believing that Miller was stalking [her] or . . . monitoring somehow [her] comings and goings." We have chosen not to consider their reactions to Miller's conduct because, as the Court observed in Lehmann "a plaintiff's subjective response is not an element of a hostile work environment sexual harassment cause of action." Id. at 613. While not relevant to the issue of liability, the "subjective reaction" of a plaintiff is "relevant to compensatory damages." Ibid. Because plaintiffs' subjective reactions are not relevant to our evaluation of the trial court's decision, and because it is Miller's conduct, not plaintiffs' reactions that must be "severe or pervasive," id. at 606, we, unlike our dissenting colleague, do not focus on plaintiffs' reactions to Miller's conduct.

We do agree, however, that the incidents should not be looked at separately. Instead, when assessing the conduct in question, this court "must consider the cumulative effect of the various incidents." Id. at 607. We disagree, however, with the characterization of our review of the incidents as "quantitative" and failing to "qualitatively assess[] Miller's overall conduct and how his actions affected plaintiffs' educational environment" to determine if that environment "had been affected to the point where a reasonable woman would consider it hostile." We have reviewed all of the incidents, both individually and collectively, and disagree that the testimony describing Miller's conduct establishes a claim under the LAD. Rather, we conclude that Miller's repeated and unwelcome behavior was one of the socially uncomfortable situations that many women encounter in the course of their lives when someone in whom they are not interested persists in trying to persuade them otherwise. In our view, Miller's persistence did not cross the line and become actionable harassment.

Here, the trial judge relied on two federal cases in support of his conclusion that Miller's conduct was not sufficiently severe or pervasive to satisfy the Lehmann standard, Morales-Evans v. Administrative Office of the Courts, 102 F. Supp. 2d 577 (D.N.J. 2000), and Lynch v. New Deal Delivery Service, 974 F. Supp. 441 (D.N.J. 1997). Such reliance on federal authority is an approach the Court viewed favorably because federal precedent is "'a key source of interpretative authority.'" Lehmann, supra, 132 N.J. at 600 (quoting Grigoletti v. Ortho Pharm. Corp., 118 N.J. 89, 97 (1990)). In both, Morales-Evans and Lynch, summary judgment was granted in favor of the defendant after the district court concluded that the conduct complained of did not satisfy the severe and pervasive requirement. Morales-Evans, supra, 102 F. Supp. 2d at 590 and Lynch, supra, 974 F. Supp. at 458.

In Morales-Evans, a supervisor attempted to kiss plaintiff on five occasions, described his genitalia in relation to other men's, joked about women's breasts and referred to plaintiff as voluptuous. 102 F. Supp. 2d at 580-81, 589. In determining that the total effect of these incidents did not constitute a violation of the LAD, the court held that because these events occurred over a period of a few years and the plaintiff failed to establish a temporal relationship between them, "no reasonable juror could conclude that these events were sufficiently 'severe or pervasive' such that a reasonable woman would consider the working environment hostile." Id. at 589-90.

Similarly in Lynch, supra, the federal district court held the hiring of a male stripper for plaintiff's birthday, the company president's repeated invitations to plaintiff to work out in his gym and join him for dinner, despite her initial refusal to do so, his appreciative comments about her body, his request that she provide him with a key to the corporate apartment she used during the week, his speculation in front of other co-workers that she must be having an affair, and his calling plaintiff at her home to discuss business were collectively insufficient evidence of a "severe or pervasive" environment. 974 F. Supp. at 451. The court noted that "[a]lthough a person is legally entitled to a work environment free of hostility, she is not entitled to a perfect workplace, free of annoyances and colleagues she finds disagreeable. In short, what is illegal is a 'hostile work environment', not an 'annoying work environment'." Id. at 452.

The decisions in Morales-Evans and Lynch are in keeping with our own precedent. See Herman v. Coastal Corp., 348 N.J. Super. l, 21-23 (App. Div.), certif. denied, 174 N.J. 363 (2002) (comments made to plaintiff while pregnant that she had a "big butt" and needed male assistance to do her job were insufficient evidence of a "severe or pervasive" environment).

In the instant case, the conduct Kile and Godfrey complain of was certainly far less egregious than the conduct found not to be actionable in Morales-Evans, Lynch and Herman. Kile's claim of a hostile environment as a result of alleged sexual harassment by Miller centers on the events occurring between fall 1999 and spring 2003. During that time period, she was subjected to three innocuous encounters with Miller in the Seminary library. She also received five mass e-mails from him, a Christmas newsletter, a Christmas card, and an e-mail invitation to dinner and to see a speaker while she was in England. None of these incidents, objectively viewed, were sufficiently severe or pervasive, either individually or in the aggregate.

As to Godfrey, her claim of sexual harassment is based on encounters with Miller occurring between fall 2000 and fall 2002. The incidents include Miller having been seated with a group of students at a cafeteria table, at which Godfrey was also sitting, his attendance at seven public Friday night Fellowship meetings, which she also attended, but where nothing occurred between them, an invitation to attend a choir concert with him, his sending her a Christmas card and note cards, her being tapped on the shoulder and taken by the hand, a few invitations to lunch, and four voicemail messages in a two-day period inviting her to various events. None of these incidents, objectively viewed, were sufficiently severe or pervasive.

Although Miller probably should have sensed Godfrey's lack of interest in him at a far earlier point, his persistence does not constitute sexual harassment. "'An employment discrimination law such as the LAD is not intended to be a 'general civility code' for conduct in the workplace.'" Herman, supra, 348 N.J. Super. at 21 (quoting Heitzman v. Monmouth County, 321 N.J. Super. 133, 147 (App. Div. 1999)). "[A] hostile work environment discrimination claim cannot be established by . . . comments [or conduct] which are 'merely offensive.'" Ibid. "Although a person is legally entitled to a work environment free of hostility, she is not entitled to a perfect workplace, free of annoyances and [acquaintances] she finds disagreeable." Id. at 23. We agree with the trial judge, here, who aptly stated, "the fact that the plaintiffs were not interested in the contacts with Miller does not make those contacts actionable. All of us every day are subject to annoying and bothersome conduct from others."

A comparison of Miller's conduct to that deemed sufficient to survive a motion for summary judgment or involuntary dismissal demonstrates the inadequacy of plaintiffs' proofs. See L.W., supra, 189 N.J. at 389 (homosexual epithets "gay," "homo" and "fag" almost daily escalating to physical aggression and molestation); Flizack v. Good News Home for Women, Inc., 346 N.J. Super. 150, 156 (App. Div. 2001) (racial comments to an employee followed by supervisor stroking her breast and embracing her, and chasing her into the parking lot where he grabbed her again); Baliko v. Int'l Union of Operating Engineers, 322 N.J. Super. 261, 268-69 (App. Div.), (repeated gestures pertaining to oral sex, combined with calling plaintiff an "ugly bitch" and making degrading sexual comments, and another employee grabbing his own crotch to taunt her); certif. denied, 162 N.J. 199 (1999); Woods-Pirozzi v. Nabisco Foods, 290 N.J. Super. 252, 260-63 (App. Div. 1996) (comments including "you're a loser," and "you're so emotional, it must be PMS time"). Wilson v. Parisi, 268 N.J. Super. 213, 216-17 (App. Div. 1993) (supervisor attempted to grab plaintiff, fondle her and pull her into an elevator up to his hotel room).

No reported decision in our own, or federal, jurisprudence has ever determined that an LAD claim exists as a matter of law based on the proofs presented here, which consist of repeated telephone, mail and in-person communication, none of which was of a sexual nature. The sole physical contact was limited to Miller's taking Godfrey's hand in his. We are not prepared, on this record, in light of the applicable precedent, to conclude that the involuntary dismissal here was error.

Our disposition concerning the second prong makes unnecessary any evaluation of the third and fourth prongs of the LAD, which the trial court never expressly evaluated.

III.

Plaintiffs further argue that the trial judge erred by dismissing their Title IX claims. We disagree.

Title IX provides in pertinent part 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 . . . ." 20 U.S.C.A. 1681(a). In interpreting that statute, the Supreme Court has held that a private right of action may exist under Title IX in cases of sexual harassment, but only under certain circumstances. Davis v. Monroe Bd. of Educ., 526 U.S. 629, 650, 119 S. Ct. 1661, 1675, 143 L. Ed. 2d 839, 858 (1999). The Supreme Court explained that:

funding recipients are properly held liable in damages only where they are deliberately indifferent to sexual harassment, of which they have actual knowledge, that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.

[Ibid. (emphasis added).]

As a result, in order to state a claim under Title IX for sexual harassment, plaintiffs must show the presence of four elements. The first three are: (1) that the seminary had actual knowledge of the alleged harassment of Kile and Godfrey, by Miller; (2) that the alleged harassment was so severe, pervasive and objectively offensive as to deny Kile and Godfrey access to the educational opportunities and benefits of the Seminary; and (3) that, in response to the alleged harassment, the Seminary was deliberately indifferent to plaintiffs' complaints. Additionally, concerning the fourth element, the Supreme Court held in Davis that liability for damages is limited "to circumstances wherein the recipient exercises substantial control over both the harasser and the context in which the known harassment occurs." Id. at 645, 119 S. Ct. at 1672, 143 L. Ed. 2d at 855 (emphasis added).

We focus on the second prong, under which plaintiffs must demonstrate that Miller's conduct was "severe, pervasive and objectively offensive." We have already addressed the "severe and pervasive" prong in connection with the LAD, and have upheld the trial judge's determination that plaintiffs' proofs were inadequate. Our conclusions concerning this equivalent prong under Title IX are identical to those we have made under the LAD.

The remaining claims for negligence and breach of contact are not of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(A), (E).

 
Affirmed.

WINKELSTEIN, J.A.D., concurring in part and dissenting in part.

I conclude that the evidence offered by plaintiffs, together with its legitimate inferences, see Dolson v. Anastasia, 55 N.J. 2, 5 (1969), was sufficient to permit the jury to find that a reasonable woman would consider William Miller's actions severe or pervasive "enough to create an intimidating, hostile, or offensive school environment, and that the school . . . failed to reasonably address [Miller's] conduct." L.W. v. Toms River Reg'l Sch. Bd. of Educ., 189 N.J. 381, 402-03 (2007). Accordingly, the motion to dismiss at the close of plaintiff's case should not have been granted. I would reverse and remand for a new trial on plaintiffs' hostile educational environment claim. I concur with the majority that the remainder of plaintiffs' claims were properly dismissed.

I

Viewing plaintiffs' testimony as true, the trial evidence establishes the following facts, which, due to the fact-sensitive nature of the case, I set forth in substantial detail.

Plaintiffs Jennifer Kile and Beth Godfrey enrolled in the Princeton Theological Seminary (the Seminary) to obtain Master's Degrees in Divinity. Kile enrolled in the fall of 1999 and Godfrey in 2000. They chose the Seminary because it was small, with young students and "an intimate atmosphere." The school awarded them scholarships to cover their tuition, but they had to work to afford their living expenses. Kile worked on campus in the library. Both participated in campus activities, including Friday Night Fellowship, a Friday evening worship service run by students.

Physically, the campus is small, with a "quad" in the middle; it takes "a minute" to walk across the campus. The dormitories are located on three sides of the quad. Located on the campus is the Mackay Center, which has a cafeteria, the "centerpiece" of the building, as well as rooms where lectures are given, and a basement with an auditorium. Kile described it as "a meeting center, a place where [students] eat, . . . study and have lectures." Both plaintiffs lived in dormitories during their first year on campus. The dormitory had no kitchen, so the students who lived in the dormitory ate in the cafeteria on a meal plan. As members of the Seminary community, plaintiffs' names, addresses and pictures were included in a directory of students, faculty and administration.

II

Kile first met Miller in the fall of 1999 while she was working in the campus library. She was sitting at a desk when Miller approached her. In Kile's words, "Mr. Miller . . . just walked up to the desk and said that he knew two young women on campus and he wanted to take them out for dinner and would I please give him their phone numbers." She considered the request to be "very odd," in that Miller was a stranger to her and he "acted like he knew these women and they would be okay with being asked out to dinner by him, but he didn't have their phone numbers himself." She declined to give him that information and he left the library.

Soon after, while Kile was again working in the library, Miller approached her and "just started chatting" with her, showing her "some articles of various ministries." After she "chatted with him politely as an employee to a patron for a few minutes," he left the building. She felt uncomfortable with the conversations. Relatively soon after the latter encounter, Miller again entered the library and approached Kile; he spoke to her and showed her more articles. He conducted no "library business" at that time or on the previous occasions.

The next contact between Kile and Miller came in the form of a package Kile received from Miller, which was in her campus mailbox when she returned from Christmas break in mid-January 2000. The name "Bill Miller" was on the return address of the package. When she initially received it, she did not know who Bill Miller was, but the package included a holiday greeting card containing Miller's printed picture, addressed, "Dear Jennifer." From the picture, she recognized him as "the guy who came up to me . . . [in] the library." The package also contained a newsletter, in which Miller explained what had occurred during the past year in his business, as well as a Xerox copy of a letter from the Seminary thanking him for his donation of his father's materials to the Seminary. Miller's father had been a "prominent" Presbyterian missionary to Iran, and had spoken at the campus when he was in his nineties. The package also contained a "devotional book" and a scripture card.

Kile had not provided Miller with her address, and while she likely gave him her first name at either the first or second meeting, she did not remember whether she told him her last name. Given the information in the package about Miller's donations to the Seminary, Kile believed "he was important to the Seminary, that he had some connections [and] that his donations were valued."

Later in January, while Kile was in the cafeteria with other students, Dean Jeffrey O'Grady, the Seminary's Dean of Student Affairs, sat down at her table. After the other students left and she was alone with the dean, she told him about receiving the package, that she was uncomfortable with Miller's contacts, and that she did not believe she had the type of relationship with Miller that merited his actions.

Following his conversation with Kile, the dean spoke with Miller by telephone. The dean testified that he put Miller "on notice that his attempts to befriend" female students were "unwelcomed and unwanted." He told Miller that he should limit his contacts and friendships to male students.

No further contact occurred between Kile and Miller until the spring of 2001. Kile studied abroad following her first year at the Seminary; starting in September 2000, she attended the University of Sheffield, in Northern England, taking classes in biblical studies. Sheffield is approximately a five-hour train ride from London. The following spring, she returned to the campus for a week. A day or two after returning, while in the cafeteria, she heard someone call her name; she turned and saw Miller at a table with another man, whom he introduced to her as "a donor to the Seminary," a "big contributor" who gave "a lot of money to fund" an important lecture series. During the conversation, Miller said: "I know that you are in England. Why don't you give me your street address? We can get together."

Kile immediately felt "freaked out and manipulated" in that Miller had "just introduced [her] to someone . . . [he purported to be] a very important [contributor] to the Seminary," who gave "a lot of money," and then "immediately ask[ed] . . . for [her] address in another country." Kile did not recall ever telling Miller that she had been or would be in England. She did not want to give him her street address. But, feeling "very manipulated about being in a public space with this donor," she tried to "get out of it politely," by telling Miller she was unable to give him her street address because she would be changing it soon. He then asked for her e-mail address. In an effort to "get out of there as quickly and politely as possible, [she] gave him [her] Yahoo e-mail address, which is what [she] use[d] for bulletin boards and . . . junk mail." She felt "pretty desperate" to leave the premises, so she told him she was going to a chapel service.

The chapel was located across the quad from the Mackay Center. Her fiancé, who was her husband at the time of the trial, was the "main speaker liturgist" at the service and she assisted him by reading scriptures. After the service ended, as she was leaving the chapel by herself, Miller approached her. He told her he went to the service because she told him that she would be there. She felt "stalked" and "completely freaked out" that he had followed her across the campus. She did not recall what she told him, but she did recall that she "got out of there as fast as [she] could."

When asked by defense counsel if, when she spoke to Miller outside of the chapel, he was polite, she responded:

He politely said that he came there because I had told him I was going to be there. So he politely said what made me feel pursued and stalked, yes.

. . . .

He basically said that he had followed me around campus right after inviting me to meet him in a foreign country for dinner. So he gave me the impression that he was following me, stalking me.

Within a couple of weeks of Kile's return to England, Miller e-mailed her. He told her that he would be coming to England and he wanted her to meet him in London to attend an evening lecture and go to dinner. She did not respond. She felt "very freaked out" that he was inviting her out in a foreign country, and asking her to take a long trip that would probably require her to stay in London overnight. On cross-examination, when asked by defense counsel if Miller's request that she visit him in England was "sexual innuendo," she responded:

Yes. I did not know this person aside from relating [to] him as an employee of the library to someone who is acting as if he's a patron of it and supposed to be there. We had very limited personal contact. And suddenly, I'm supposed to meet him in a foreign country, take a five hour train ride to meet him for dinner? Stay overnight and come back or whatever?

After completing her course of study in England, Kile returned to the Seminary in May 2001, where she took up residence in the Charlotte Rachel Wilson (CRW) apartments, Seminary housing located a couple of miles from campus.

On September 4, 2001, she sent Dean O'Grady an e-mail raising her concerns about Miller's contacts with her. She explained that she was angry with Miller, that she felt manipulated, and asked that the dean speak with him. She attached to the e-mail a chronology of her contacts with Miller, in which she related Miller's previously described prior conduct towards her.

She indicated that he approached her in a way that made her feel "uncomfortable, but [was] not illegal, and hard to prove as harassment." She felt that the packages he sent to her, and the words he wrote, "reflect a more intimate friendship than is there but the words he says are of friendship and are therefore hard to know how to handle. I also think he is well aware of what he is doing and knows it is hard to prove."

III

Godfrey's first experience with Miller occurred in the fall of 2000, when she joined a friend who was sitting with Miller at a table in the cafeteria. She thought he was a retired professor from the Seminary or someone within the Seminary community.

She next observed Miller at a Friday Night Fellowship service. She had not seen him at one of the services before meeting him in the cafeteria. Thereafter, she saw him at the services three or four times. Aside from guest speakers, Miller was the only non-student in attendance.

Godfrey's next contact with Miller occurred during a formal Christmas dinner dance in the Seminary cafeteria. She described the encounter:

I . . . got into the back of . . . the dessert line . . . . And Mr. Miller came up behind me and he placed his hand on my shoulder and said, Beth. So, I turned around expecting to see a friend or someone that I knew. And I saw Mr. Miller, this man that I barely knew at all. And I said, hello. And he took my hand in both of his hands and said, it's so good to see you here this evening. And I removed my hand from his hands . . .

Q. Why did you do that?

A. Because it was creepy the way that he was holding them. He just kind of took my hands and I just barely knew this man. It was very, very strange. And he knew my name and I barely knew who he was. . . .

Q. What happened next?

A. He said . . . you don't look like you have anything to do this evening. Which kind of shocked me as I was standing there . . . in an environment with friends wearing formal attire, basically a gown. He said, you don't look like you have anything to do this evening. I have two tickets to go to a concert across town. Would you care to go with me and accompany me to this concert?

Godfrey told him she did not care to go with him to the concert, that she was at the function with her friends and that they had plans for the remainder of the evening, which included going to a caroling event in Mackay. She testified to what happened next:

And I turned to head back in the line towards the bar. And he followed . . . . And he said, oh, come on. It's going to be a beautiful concert. You know, I have these tickets. It's going to be a lovely evening and I'd like to share it . . . with you, something to that effect. And I said, no.

Godfrey felt "very uncomfortable that he was asking [her] out on a date."

Subsequently, when she went to the caroling, Miller was there. When he entered, he walked to "within . . . three [to] five feet of [her]." Godfrey moved to the other side of the room.

The next week, Godfrey was with a friend when she saw Miller in a Hallmark store. She walked to the other side of the store to try to avoid him, but he saw her, and approached her and her friend and started a conversation. After Miller approached, and her friend introduced herself to Miller, Godfrey and her friend left the store.

Upon returning from Christmas break, Godfrey discovered a package from Miller in her campus mailbox. Inside the package was a card addressed, "Dear Beth." The package was addressed to plaintiff at her dormitory room. Though her mailbox number was not publicly available, her room number could be obtained from the student directory. The letter from Miller contained "numerous details about his personal life, his sister, his sister's health problems . . . where he was going for the holidays. And then there [was] a package of Winnie the Pooh note cards." Godfrey described her reaction to receiving the package:

I . . . realized, with horror, that it was this man. . . . I got very, I was afraid. I had shivers up and down my spine. So, I went to someone down the hall that knew of Mr. Miller. And asked what she thought I should do, what type of response I should have.

After consulting with friends as to how to respond, Godfrey wrote Miller "a very short, concise thank you note and said I hope that he would experience the peace of God and Jesus Christ that season." She responded "[t]o just do the polite thing." She believed she would "run into him again all over campus," and she knew "[h]e was connected to people." At that point, she stopped attending the Friday Night Fellowship services for fear of having contact with Miller.

Godfrey's next contact with Miller occurred in the summer of 2001 when she was living in the Witherspoon apartments, which were occupied by Seminary students and are located on the CRW campus, several miles from the main campus; she sublet for the summer while she took additional courses. Miller resided in another building in the apartment complex, directly across the street from where she was living.

During one week that summer, Miller contacted her a number of times. On one occasion, while she was in the Seminary cafeteria, Miller approached her from behind, "tapped" her, and said "[h]ello, Beth." She said hello and turned away. Then:

He . . . said, Beth, would you like to have lunch with me today? And I said, no, I have a study group to attend. And then I turned again. And then he said, well, how about if I take you out some other day? And I turned around and I said, no. . . . [T]here were people in front and people in back of me. And I said, no, I would only eat with you if we were in the middle of this cafeteria at a group table with other people. And then I turned away from him and got my lunch and proceeded on.

The following Saturday afternoon, she received a message from Miller on her answering machine.

He said who he was, something to the effect of, hi, you know, Beth, this is Mr. Miller. I was, you know, delighted to see you in the cafeteria and meet up with you again the other day. And I have [] tickets to a concert this evening and would like to take you out this evening. And basically he was asking me out on another date.

She described the message as "pretty creepy," in that she believed her behavior toward him "had given [him] every kind of normal social cue that [she] did not want to be with him alone." She also felt it was unusual for a man of his age to ask women her age for dates.

She did not return his call, but he called her again and left a message. In the message, he said he was anxious to go out with her, and if she could not make the evening service, he would like to have lunch with her the next day, to have "some companionship time." Godfrey did not return the call.

The following morning, around 9:30 a.m., she received a third call from Miller. At trial, she described the message he left on her answering machine, which she listened to after she returned from church.

He basically said I'm upset, but . . . you haven't called me back. And I wanted to go out with you. I wanted to go [to] church with you and well, now, it's too late to go to church. I guess you've probably already gone to your church or something. . . .

So, I'd like to invite you to go out with me this afternoon to a picnic. I have a great picnic basket. I have, you know, a blanket. It's a concert. We can go. I'll bring some drinks and I'll bring some snacks. And we can go to this picnic and sit together and talk and have some companionship.

Godfrey testified that Miller's tone changed from one call to the next. He became "more and more insistent and persistent," and by the third call he was "a little harried."

That afternoon, Miller called a fourth time. Godfrey described the call as "very threatening, very harassing." She

started to get an idea that he was stalking [her] or . . . monitoring somehow [her] comings and goings.

Because he said, you didn't call me, you didn't call me back. You haven't, I'm sure you've been home by now. You know, in and out, . . . and then he said, good Christian women call, good Christian women, you know, call men back when they ask them out, . . . and he said . . . it's not too late. You just pick up my invitation to go to the picnic with me. We have an hour or so before it's too late. And call me back. So, he was very much more inflamed and angry that [she] had not called him back.

Godfrey went to Dean O'Grady's office the following week. The dean was on vacation and his secretary directed her to speak to either the housing director or Kathy Cook Davis, the student services director. Godfrey walked down the hall to see Davis. She told her of the problems she was having with Miller. Davis responded: "I know Bill Miller. He's been doing this to students since I was a student here. He asked me out on dates when I was a student here. . . . he pursued me." Davis told Godfrey that Miller only stopped pursuing her "because [she] got a fianc[ ] and he was a rather large man and [they] got married."

Godfrey told Davis everything that had happened, and asked for advice as to how to proceed. Davis responded that Dean O'Grady had previously placed restrictions on Miller; "he had taken some type of Seminary action with Mr. Miller from prior complaints before she was there." Consequently, Davis instructed Godfrey to wait until the dean returned and deal directly with him.

Several weeks later, after Dean O'Grady returned from vacation, Godfrey and another student, Jane Ward, met with him in his office. Godfrey knew Jane Ward "as a fellow student and another woman that had been harassed by Mr. Miller at that point." Godfrey told the dean of her experiences with Miller, including "his [pursuit] of [her], . . . the gift, the letters, the phone calls. The ways in which [she] had rebuffed him and said, no." Dean O'Grady appeared "irritated" at Miller, in that he had prior dealings with Miller and had given him warnings. The dean led her to believe that he would give Miller "a final warning and a restriction."

The dean prepared a letter to send to Miller. Godfrey and Ward returned to review it before he sent it and "signed off on" it. The letter, dated September 4, 2001, was addressed, "Dear Bill," and said in part,

I regret that I must again contact you at the request of several of our current female students, who have asked me to assist them in addressing judgment, appropriate behavior, and other boundary issues with you.

On a variety of occasions you have made unwelcome contact with a number of our female students. . . . These women have informed me that they have neither solicited these advances nor encouraged you in any way, and yet these attempts to establish some sort of personal relationship with them continue.