                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-21-2004

Pociute v. West Chester Univ
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-4748




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"Pociute v. West Chester Univ" (2004). 2004 Decisions. Paper 50.
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                                                            NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                    NO. 03-4748
                                    ___________

                                JURGITA POCIUTE,

                                                          Appellant
                                         v.

           WEST CHESTER UNIVERSITY; MADELINE WING ADLER;
                    JAMAL GHOROGHCHIAN, PROF.




                                    ___________

                   On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                              (D.C. Civil No. 02-cv-09113)
                   District Judge: Honorable Clarence C. Newcomer
                                     ___________

                             Argued December 13, 2004

     BEFORE: AM BRO, VAN ANTWERPEN and STAPLETON, Circuit Judges.

                             (Filed December 21, 2004)

Nancy C. DeMis, Esq. (Argued)
Gallagher, Schoenfeld, Surkin & Chupein, P.C.
25 West Second Street
Media, PA 19063-0900

Counsel for Appellant


Gerald Pappert, Attorney General, Commonwealth of Pennsylvania
Randall J. Henzes, Deputy Attorney General (Argued)
Calvin R. Koons, Senior Deputy Attorney General
John G. Knorr, III; Chief Deputy Attorney General; Chief, Appellate Litigation Section
Office of Attorney General
21 South Twelfth Street
Third Floor
Philadelphia, PA 19107-3603

Counsel for Appellee
                                       ___________

                                        OPINION
                                       ___________

VAN ANTWERPEN, Circuit Judge,

                                        I. FACTS

       Because we write only for the parties, we limit our discussion to those facts

pertinent to our decision. Appellant Jurgita Pociute filed suit against West Chester

University (“West Chester”), its president Madeline Adler, and Professor Jamal

Ghoroghchian in December 2002. (Appellant Brief at 3.) The suit alleged, inter alia, that

Ghoroghchian sexually harassed Pociute while she was a student at West Chester. Id. At

the close of discovery, the District Court dismissed the claims against Adler, but held that

Pociute could proceed on her claims against West Chester for violation of Title IX of the

Civil Rights Act of 1964, as amended, 20 U.S.C. § 1681, and the Pennsylvania Human

Relations Act, 43 P.S. § 951 et seq. Id. at 2-4. A jury trial was held November 17-20,

2003. Id. at 2.

       During the trial, Pociute introduced testimony that a third party, Professor Melissa



                                             2
Cichowicz, reported concerns regarding Ghoroghchian’s conduct with female students to

Luz Hernandez, West Chester’s Director of the Office of Social Equity, prior to the

events which gave rise to this litigation. Id. at 4-5. A portion of the testimony went as

follows:

       MS. DEMIS:           Had you also spoken with Miss Luz Hernandez regarding
                            these same concerns?
       MS. CICHOWICZ:       That is my recollection, yes.
       MS. DEMIS:           And when, relative to speaking to the dean, had you done
                            that?
       MS. CICHOWICZ:       I believe that it was while I was working in the dean’s office,
                            sometime between 1999 and 2001.
                            ....
       MS. DEMIS:           What response, if any, did you get from the – strike that.
                            Were you given any guidance from the office of social equity
                            as to what you should or could do in these circumstances?
       MR HENZES:           Objection, Your Honor. The answer calls for hearsay.
       MS. DEMIS:           Your Honor, I think admission of a party opponent. That is a
                            representative of the office.
       THE COURT:           Overruled.
       MS: DEMIS:           Were you given any information as to what you could do as a
                            – in response to these concerns?
       MS. CICHOWICZ:       My recollection is –
       THE COURT:           No, the answer is yes or no.
                            ....
       MS. CICHOWICZ:       Yes.
       MS. DEMIS:           What was that? What were those instructions?
       THE COURT:           No, I will sustain the objection as to that question. That
                            would be hearsay.
       MS. DEMIS:           Your Honor, I believe it would be admission of a party
                            opponent, the Office of Social Equity.
       THE COURT:           Counsel, once I rule, the game is over.
       MS. DEMIS:           Thank you, Your Honor.
                            ....
       MS. DEMIS:           Did Ms. Hernandez do anything in terms of contacting you or
                            anything else to your knowledge to follow up on your reports
                            of complaints about Dr. Ghoroghchian – strike that. Did Ms.
                            Hernandez do anything to follow up with you on your reports
                                             3
                      about your concerns regarding Dr. Ghoroghchian?
       MS. CICHOWICZ: Not that I recall, no.

(Appellant App. at A-39 to A-43.) Hernandez was also called as a witness, but was

unable to recall having such a conversation with Cichowicz.

       Following the trial, the jury returned verdicts against Ghoroghchian and in favor of

West Chester, finding that Pociute had not proved that “an appropriate person with

authority to institute corrective measures at West Chester University had notice of

defendant Ghoroghchian’s sexually harassing conduct of students before January 26,

2001 and failed to adequately respond.” Id. at A-78. Pociute now appeals the District

Court’s entry of judgment in favor of West Chester upon the grounds that Cichowicz

should have been permitted to answer when asked about what instructions Hernandez

gave her.

                 II. JURISDICTION AND STANDARD OF REVIEW

       The District Court had jurisdiction of this matter pursuant to 28 U.S.C. §§ 1331

and 1367(a). This Court has jurisdiction over the District Court’s order pursuant to 28

U.S.C. § 1291. We generally review the trial court’s admission of evidence for abuse of

discretion, however, when admissibility involves a legally set standard our review is

plenary. Savarese v. Agriss, 883 F.2d 1194, 1200 (3d Cir. 1989).

                                     III. ANALYSIS

       Pociute argues that the District Court acted improperly by not allowing Cichowicz

to answer the question regarding the instructions she received from Luz Hernandez, West

                                             4
Chester’s Director of the Office of Social Equity. According to Pociute, the District

Court erred in ruling that the answer to the question was inadmissible hearsay because the

conversation amounted to an admission by a party-opponent and fell within the hearsay

exception of Federal Rules of Evidence Rule 801(d)(2)(D)1 .

       Pociute cites this Court’s decision in Abrams v. Lightolier Inc., 50 F.3d 1204,

1216 (3d Cir. 1995), to support her position that an employee may testify as to statements

made by a supervisor regarding company policy. In Abrams, we explained that “[w]here

a supervisor is authorized to speak with subordinates about the employer's employment

practices, a subordinate's account of an explanation of the supervisor's understanding

regarding the criteria utilized by management in making decisions on hiring, firing,

compensation, and the like is admissible against the employer.” Id.

       Appellee does not dispute Pociute’s legal conclusions on this matter. In light of

our decision in Abrams, and the plain meaning of Federal Rule of Evidence 801(d)(2)(D),

we conclude that the District Court erred in refusing to allow Cichowicz to answer the

question.

       Anticipating this decision, West Chester confines its argument to the premise that

the District Court’s error was harmless. West Chester argues that the excluded answer to

the question would have added nothing because Cichowicz established the elements for



       1
          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 party's agent or servant
concerning a matter within the scope of the agency or employment, made during the existence of
the relationship.”
                                                     5
liability when she testified without objection that she gave notice to Hernandez and that

Hernandez did nothing to follow-up. (Appellee Brief at 10.) According to Pociute

however, the Court’s exclusion of the answer to the question left the jury with

“uncontradicted testimony that Cichowicz’s bringing the matter to Hernandez would have

resulted in action.” (Appellant Brief at 13.) According to Pociute’s offer of proof, “Dr.

Cichowicz would have stated that she was advised by Ms. Hernandez that no university

action could be taken unless students were ‘willing to attach their names to a complaint.’ .

. . Dr. Cichowicz would have testified further that she was told at the time of these

conversations, in 1998-99, that this was official university policy.” (Appellant App. at A-

66.)

       In a sexual harassment suit brought under the implied right of action under Title

IX, “damages may not be recovered . . . unless an official of the school district who at a

minimum has authority to institute corrective measures on the district's behalf has actual

notice of, and is deliberately indifferent to, the teacher's misconduct.” Gebser v. Lago

Vista Independent School Dist., 524 U.S. 274, 277 (1998). In this case, the jury found

that Pociute had not proven “by a preponderance of the evidence that an appropriate

person with authority to institute corrective measures at West Chester University had

notice of defendant Ghoroghchian’s sexual harassing conduct of students before January

26, 2001 and failed to adequately respond.” (Appellant App. at A-78.)

       Assuming that Hernandez was a person with authority to institute corrective

measures, only two plausible explanations can be derived from the jury finding: (1)
                                             6
Pociute failed to establish that West Chester had notice of Ghoroghchian’s conduct before

January 26, 2001, or (2) Pociute failed to establish that West Chester failed to adequately

respond. It appears from the record that West Chester claimed it never received notice of

Ghoroghchian’s conduct prior to January 26, 2001, and accordingly West Chester made

no claim that it responded adequately. The issue then, is whether it is highly probable

that, had Cichowicz been permitted to answer the question, the jury still would have

found that West Chester was not on notice of Ghoroghchian’s conduct before January 26,

2001.

        “[A] court can find that [non-constitutional] errors are harmless only if it is highly

probable that the errors did not affect the outcome of the case.” McQueeney v.

Wilmington Trust Co., 779 F.2d 916, 917 (3d Cir. 1985). This standard has been

described as “moderately stringent, though not unreasonably high,” id, at 927, and we

need only “be well-satisfied that the error did not prejudice a party, but we need not

disprove every reasonable possibility of prejudice,” General Motors Corp. v. New A.C.

Chevrolet, Inc., 263 F.3d 296, 329 (3d Cir. 2001).

        Pociute’s only claim regarding the importance of Cichowicz’s answer is that “[h]er

testimony . . . could explain why there was no evidence of any investigation where

Hernandez was unable to recall whether she had heard of concerns from Cichowicz.

Without that testimony, the jury was left with uncontradicted testimony that Cichowicz’s

bringing the matter to Hernandez would have resulted in action.” (Appellant App. at 13.)

        Pociute’s claim is unpersuasive. To begin with, West Chester is correct when it
                                               7
claims that Cichowicz’s testimony, as presented, was sufficient to establish the elements

for liability under Gebser, 524 U.S. at 277. Cichowicz testified that sometime between

1999 and 2001 she gave notice to Hernandez and nothing was done. Cichowicz’s answer

would not have addressed whether notice was given. Therefore, the value of the excluded

answer rests solely on the claim by Pociute that it would have bolstered Cichowicz’s

credibility by explaining why there was no evidence of any investigation in view of the

“uncontradicted testimony” of Hernandez that a complaint would have resulted in action.

       However, we have reviewed the record and there exists no such “uncontradicted

testimony” by Hernandez that a complaint would have resulted in action. Hernandez

testified that had someone come to her with third-party complaints of sexual harassment,

she would have advised that person to try to bring the students to her office so that she

could go over the procedures with the students. (Appellant App. at A-59.) She also

testified that she could investigate complaints about sexual harassment without a written

complaint. Id. However, at no point did Hernandez give any indication as to what she

would or would not have done had she been presented with the complaints that Cichowicz

testified she had made.2

       Pociute has offered no other suggestion as to how the excluded answer would have

affected the outcome of this case. Since it would not have helped to establish notice or

       2
         In fact, Pociute’s counsel specifically tried to ask Hernandez, “Would you have
advised Miss Cichowicz that she needed to have the individual bring a signed complaint
before you were able to 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
bolstered Cichowicz’s credibility, it did not prejudice Pociute and it is highly probable

that the jury would have reached the same conclusion.

       For the above reasons, we affirm the judgment and order of the District Court.




                                              9
