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Jenkins v. University of Minnesota

United States Court of Appeals, Eighth Circuit

October 3, 2016

Stephanie Jenkins Plaintiff- Appellee
v.
The University of Minnesota Defendant Ted Swem, in his personal capacity Defendant-Appellant David E. Andersen, in his personal capacity Defendant

          Submitted: June 15, 2016

         Appeal from United States District Court for the District of Minnesota - Minneapolis

          Before MURPHY and SHEPHERD, Circuit Judges, and PERRY, [1] District Judge.

          PERRY, District Judge

         Stephanie Jenkins brought this sexual harrassment suit under 42 U.S.C. § 1983 against the University of Minnesota, David Andersen, and Ted Swem. After the district court denied Swem's motion for summary judgment based on qualified immunity, he appealed. This Court has jurisdiction over this interlocutory appeal. We affirm the district court's[1] denial of qualified immunity.

         I. Background

         Stephanie Jenkins entered the University of Minnesota in the fall of 2011 to pursue a Ph.D. in Natural Resources and Science Management.[2] The summer before she began her studies, Jenkins was offered a unique and professionally advantageous opportunity to work as a graduate researcher collecting field data on peregrine falcons on the Colville River in Alaska. The project, a joint collaboration between the U.S. Geological Survey, the Bureau of Land Management, and the University, aligned with her exact academic interests.

         Ted Swem, a scientist from the United States Fish and Wildlife Services stationed in Fairbanks, Alaska, is the leading authority in the field of peregrine falcons. He has been monitoring the birds in Northern Alaska for approximately thirty years. Swem's role in the project was to be mentor and guide to Jenkins, teaching her how to collect and sort the data, as well as how to survive in the remote region.

         In June and July of 2011, Jenkins and Swem embarked on two 17-day research trips to the isolated Colville River, a remote field location in arctic Alaska almost completely uninhabited by humans. Almost immediately, Swem began telling sexually explicit jokes, asking Jenkins personal questions about her dating life, and telling stories of prior sexual encounters and relationships with previous graduate students. He took a photograph of her buttocks, which he later deleted, and made a comment about "the scenery." He bathed in the river in front of her, and encouraged her to do the same, telling her she was too modest. He also made reference to her needing a "pool boy" to accompany her on research trips.

         Between and after the trips, Jenkins stayed in Fairbanks for a couple of weeks to organize and analyze the collected data. In Fairbanks between the two trips, Swem invited Jenkins on social outings, including offering to take her rappelling and kestrel banding, because she would need those skills on her second trip. On the day of this particular outing, and once they were fairly far outside of Fairbanks, Swem claimed he forgot the rappelling equipment. Instead they banded kestrels and had dinner together at a restaurant. He offered to be her pool boy and give her a "horse bite" while they were in the car together. When they arrived back at his house later that evening, Jenkins went inside to retrieve her computer. Swem left the lights off in the house and stared at her.

         Another time, Swem invited Jenkins to lunch under the pretense of discussing logistics of the upcoming trip, even though it quickly became apparent that the trip was already planned. He complimented her physical appearance and told her he was interested in a romantic relationship with her. He joked that they should bring only one tent for the next trip and that she was welcome in his tent anytime. He also told her that she could just sit in his lap and kiss him if she ever wanted a relationship with him. He acknowledged that his behavior could be construed as sexual harassment because of the power dynamic, but suggested that his role could be changed if she was interested in pursuing a relationship. Jenkins informed Swem that she wished to keep their relationship professional.

         During the second trip, Dr. Andersen - Jenkins' academic advisor at UM and a collaborator on the research project - was present for the first seven days of the trip. Swem did not tell any sexual jokes or otherwise act inappropriately during that time, but as soon as Andersen left, Swem resumed his aggressive sexual advances. On one occasion, as they rappelled down to a nest site, Swem described what he thought it would be like to kiss her. Jenkins could not physically distance herself from him at this point, so she did not respond at all. Swem also brought alcohol on the trip and encouraged Jenkins to drink every night. He suggested they celebrate their last night of the trip by finishing an entire bottle of whiskey together, but Jenkins declined.

         Swem continued to pressure Jenkins on the question of why she was not interested in a romantic relationship. She repeated that they worked together and offered several other reasons as well.

         When they returned to Fairbanks after the second trip, Swem invited Jenkins to dinner at his house on multiple occasions, always offering her alcohol. She also went there on occasion to shower, and to use his laundry facilities, because she did not have running water in her cabin. Swem continued to discuss his desire for a relationship with her, explaining that all the reasons she gave for not dating him were logistical and could be overcome. Jenkins again explained that she had no interest in a romantic relationship with him.

         When she arrived at UM for the beginning of the fall semester, Jenkins learned that she and Swem were assigned to share an office space. He was to be there for one academic year, analyzing his Colville river data, among other duties. Swem continued to invite Jenkins out on social outings, including dinner and hockey games, though he did not make any further sexual comments. Jenkins eventually started studying and doing her graduate work in coffee shops or libraries to avoid Swem. She states ...


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