                                                                            FILED
                            NOT FOR PUBLICATION                              JAN 31 2012

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



JANE DOE,                                        No. 10-17315

              Plaintiff - Appellant,             D.C. No. 2:09-cv-00764-FCD-
                                                 KJN
  v.

UNIVERSITY OF THE PACIFIC,                       MEMORANDUM *

              Defendant - Appellee.



                    Appeal from the United States District Court
                       for the Eastern District of California
                 Frank C. Damrell, Senior District Judge, Presiding

                      Argued and Submitted January 17, 2012
                            San Francisco, California

Before: McKEOWN, CLIFTON, and BYBEE, Circuit Judges.

       Doe was sexually assaulted by three male University of the Pacific (“UOP”)

basketball players. Doe claims that UOP acted with deliberate indifference and

retaliated against her in violation of Title IX. The district court granted summary




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
judgment for UOP on all claims. We have jurisdiction under 28 U.S.C. § 1291,

and we affirm.

      Damages under Title IX are available only if an official with authority to

address the alleged discrimination and institute corrective measures has actual

knowledge of the discrimination and fails to adequately respond—i.e., acts with

deliberate indifference. See Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274,

290 (1998). The test for deliberate indifference is “whether a reasonable fact-

finder could conclude that the [official]’s response was clearly unreasonable in

light of the known circumstances.” Oden v. N. Marianas Coll., 440 F.3d 1085,

1089 (9th Cir. 2006) (internal quotation marks omitted). Summary judgment is

properly entered when a school’s response to the harassment was not clearly

unreasonable as a matter of law. Davis v. Monroe Cnty. Bd. of Educ., 526 U.S.

629, 649 (1999).

                       I.   DELIBERATE INDIFFERENCE

      A.     Doe claims that UOP’s response to a prior campus rape in April 2008

was clearly unreasonable in light of the known circumstances, and thereby

increased the risk of her assault. Doe bases this claim on a suspicion by Edward

Michael Belcher, UOP’s Director of Public Safety, that one of the assailants may

have been involved with the April rape. At the time of Doe’s assault, however,


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Stockton police and UOP had only a general description of the attackers from the

prior incident. Belcher reported his suspicion to the Stockton police but they chose

not to pursue it because the victim had declined to cooperate further. UOP had no

actual knowledge that any of the assailants in this case were involved in the April

incident. Additionally, Belcher was not clearly unreasonable in concluding that the

connection between the assailants and the April incident was too tenuous given the

general nature of the description and the lack of sufficient evidence. Given the

information that was available to UOP at the time of Doe’s assault, the district

court did not err in concluding that UOP’s actions were not clearly unreasonable.

      B.     Doe next contends that UOP’s response to her sexual assault was

clearly unreasonable and subjected her to further harassment. Doe first claims that

UOP itself harassed her when Elizabeth Griego, the Vice President for Student

Affairs, allegedly admonished her that the men “were very popular and did not

need to force anyone to have sex with them.” Inadmissible evidence, however, is

insufficient to create a relevant factual dispute. See Fed. R. Civ. P. 56(c)(4);

Nelson v. Pima Cmty. Coll., 83 F.3d 1075, 1081–82 (9th Cir. 1996). Even if this

statement were admissible, it does not create a factual dispute that, if resolved in

Doe’s favor, would show that an official at UOP with authority to address the




                                           3
alleged discrimination and institute corrective measures had actual knowledge of

and failed to adequately respond to the harassment.

      Doe also claims that UOP unreasonably responded to her assault by

requiring her to be in contact with her assailants when it refused to expel two of the

men. In Oden, we stated that “[a]n aggrieved party is not entitled to the precise

remedy that he or she would prefer.” 440 F.3d at 1089. After hearing over fifteen

hours of testimony, the Judicial Hearing Board found Doe’s attackers guilty and

the men were punished—one assailant was expelled and two were suspended. The

suspended assailants were required to complete further education and training in

substance use and sexual assault awareness, and, when they returned after their

suspensions, were required to adhere to several probationary terms, including no

direct or indirect contact with Doe or her family. The assailants were further told

that they would be expelled if they committed any additional violations of the

Student Code of Conduct, and their academic transcripts and records would reflect

the suspensions. The district court did not err in concluding that UOP’s response

was not clearly unreasonable as a matter of law in punishing the assailants. See

Oden, 440 F.3d at 1089.




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                                II.   RETALIATION

      Doe contends that UOP retaliated against her by requiring the men’s

basketball team to have “no contact” with her. To prevail on a claim of retaliation

under Title IX, the claimant must prove that she was retaliated against because she

complained of sex discrimination. Jackson v. Birmingham Bd. of Educ., 544 U.S.

167, 184 (2005).

      Doe first argues that the district court abused its discretion in excluding

evidence of the “stay away from [Doe]” directive. The district court found that this

evidence was inadmissible hearsay. The statement at issue was allegedly a

directive from Lynn King, the Athletic Director, given to the head of the men’s

basketball team, which was then relayed to Doe through another coach. There is

no evidence that King or the coaches were authorized to speak for UOP or that this

was a policy adopted by UOP; thus the statement did not fall within the hearsay

exception for a statement by the opposing party or its agent. See Fed. R. Evid.

801(d)(2)(C), (D). Therefore, the district court did not abuse its discretion.

      Even if this particular statement had been admitted, there is no evidence that

the university acted with a retaliatory motive or that the non-retaliatory motive

given for its actions was pretextual. UOP claims that its decisions were motivated

by its desire to reduce tensions between the two teams and to avoid making Doe


                                           5
the target of harassment. Doe has not offered any evidence to show that this

justification was pretextual. Therefore, the district court did not err in concluding

that Doe failed to make out a retaliation claim sufficient to defeat summary

judgment.

      AFFIRMED.




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