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Jenkins v. The University of Minnesota

United States District Court, D. Minnesota

September 25, 2014

THE UNIVERSITY OF MINNESOTA, TED SWEM, in his personal capacity and DAVID E. ANDERSEN, in his personal capacity, Defendants

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For Plaintiff: Joseph A. Larson, JOSEPH A. LARSON LAW FIRM PLLC, Saint Paul, MN; Brent S. Schafer, SCHAFER LAW FIRM, PA, Lilydale, MN.

For The University of Minnesota, Defendant: Timothy Joseph Pramas, UNIVERSITY OF MINNESOTA OFFICE OF THE GENERAL COUNSEL, Minneapolis, MN.

For Ted Swem, Defendant: Ana H. Voss and Greg Brooker, Assistant United States Attorneys, UNITED STATES ATTORNEY'S OFFICE, Minneapolis, MN; Thomas Edward Hayes, LAW OFFICE OF THOMAS E. HAYES, Milwaukee, WI; Thomas H. Shiah, LAW OFFICES OF THOMAS H. SHIAH, Minneapolis, MN.

For David E. Andersen, Defendant: Ana H. Voss, Assistant United States Attorney, UNITED STATES ATTORNEY'S OFFICE, Minneapolis, MN.

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JOHN R. TUNHEIM, United States District Judge.

Plaintiff Stephanie Jenkins brings this action alleging various statutory and common law tort claims against Defendants the University of Minnesota (" the University" ), Ted Swem, and David Andersen, arising out of sexual harassment that allegedly occurred while she was pursuing a Ph.D. at the University. Jenkins alleges that while she was conducting research for her Ph.D., Swem, a scientist from the United States Fish and Wildlife Service (" USFWS" ) involved in her research project, made repeated unwanted sexual advances toward her. Jenkins also alleges that Andersen, her adviser at the University, did nothing to remedy the situation when it was brought to his attention and created a hostile work environment, ultimately forcing her to resign from her position.

Swem moves to substitute the United States as the proper defendant for the common law tort claims brought against him by Jenkins, arguing that at the time the alleged torts were committed Swem was acting within the scope of his employment with the USFWS, an agency of the federal government. Swem also brings a motion to dismiss Jenkins' hostile work environment claim brought against him under 42 U.S.C. § 1983, arguing that he is entitled to qualified immunity. The Court will deny the motion to substitute, because it concludes that Swem was acting outside the scope of his employment as a federal employee at the time he engaged in the acts forming the basis for Jenkins' tort claims. The Court will also deny the motion to dismiss, as Jenkins' complaint adequately alleges a violation of her clearly established statutory and constitutional rights.



In January 2011, the University accepted Jenkins into its Department of Fisheries, Wildlife and Conservation Biology to pursue a Ph.D. in Natural Resources and Science Management. (Aff. of Joseph A. Larson, Ex. B at 1, Nov. 22, 2013, Docket No. 61; Compl. ¶ 19, June 24, 2013, Docket No. 1)[1] In pursuing her Ph.D., Jenkins' aspiration was to focus on raptor ecology, and more specifically peregrine falcons in arctic areas within the United States, with the intent to someday work for the USFWS or United States Geological Survey in a raptor research capacity. (Compl. ¶ 16.) In June 2011, the University hired Jenkins as a research assistant on the Colville River Special Area Peregrine Falcon Research Project (" the Project" ). (Larson Aff., Ex. B at 2.) Defendant Andersen was the Principal Investigator on the Project and served as Jenkins' advisor for her Ph.D. work at the University.

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(Compl. ¶ 23.) Patricia Kennedy was Jenkins' co-advisor for her Ph.D. and work on the Project. ( Id. ¶ 24.)[2]

A. Survey Research Trips

In the summer of 2011, Jenkins travelled to Alaska for two seventeen-day field survey research trips along the Colville River in Alaska to conduct research on peregrine falcons. ( Id. ¶ 27.) The survey area for these trips was in a remote field location in arctic Alaska almost completely uninhabited by humans. ( Id. ¶ 28.) Defendant Swem, an employee of the USFWS and an expert on peregrine falcons, accompanied Jenkins on these research trips. ( Id. ¶ 32.) Swem considered himself to be " a host" for Jenkins while she was conducting research in Alaska. (Decl. of Ted Swem ¶ 8, Nov. 1, 2013, Docket No. 47.)

Swem was the only person who accompanied Jenkins on the first survey trip. (Compl. ¶ 32.) Jenkins alleges that during this trip Swem made unwanted sexual advances toward her. Among other things, Jenkins alleges that Swem took a photograph of her butt as she was bending over a research nest ( id. ¶ 36), asked several questions about Jenkins' dating life, and stated that he would like to be her ideal research partner or " pool boy" ( id. ¶ 38). Jenkins alleges that these comments made her uncomfortable. ( Id. ¶ 39.)

After the first survey trip concluded, Jenkins and Swem spent two weeks in Fairbanks, Alaska, analyzing the data collected during the first trip and preparing for the second. ( Id. ¶ ¶ 40-41.) In Fairbanks, Jenkins stayed in an apartment provided by the University. ( Id. ¶ 41.) During this time period Swem allegedly pursued Jenkins romantically and invited her on multiple social outings, including dinners and rappelling trips. ( Id. ¶ ¶ 42-44.) After Swem invited Jenkins to go rappelling he claimed to have forgotten his rappelling gear, and took Jenkins to dinner instead. ( Id. ¶ 44.) Jenkins also alleges that once, after the two had eaten dinner at his house, Swem turned off all of the lights, making Jenkins uncomfortable. ( Id. ¶ 46.) Jenkins also alleges that during this two-week time period Swem continued to reference becoming Jenkins' pool boy, admitted that he was flirting with her ( id. ¶ 47), stated he would like to give Jenkins a horse bite (when you grab someone on the thigh and squeeze) ( id. ¶ 48), told Jenkins he was interested in her romantically ( id. ¶ 50), suggested they bring only one tent on the second survey trip ( id. ¶ 51), and acknowledged that his behavior could be construed as sexual harassment due to his position as her advisor and supervisor ( id. ¶ 52). Swem also allegedly told Jenkins that " he would not make the 'first move,'" but " she should just enter his tent if she wanted to." ( Id. ¶ 53.) Jenkins told Swem " that his behavior made her uncomfortable, but was concerned about being too direct, as she thought it could affect her spot in the Program and her eventual career." ( Id. ¶ 54.) She did, however, tell Swem " that she wanted their relationship to remain professional." ( Id.)

Andersen accompanied Jenkins and Swem for the first seven days of the second survey trip. ( Id. ¶ 56.) After Andersen left, Swem's unwanted sexual advances continued. ( Id. ¶ 57.) For example, Jenkins alleges that Swem on several occasions asked her to explain why she was not romantically interested in him and once, when they were researching a remote nest site, described in detail to Jenkins what he

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thought it would be like to kiss her. ( Id. ¶ ¶ 57-61, 67.) Because of their location, " Jenkins could not create physical distance from Swem." ( Id. ¶ 58.)

B. Jenkins' Resignation

After the survey research trips concluded, Jenkins began the fall semester at the University. ( Id. ¶ 69.) Jenkins learned that she and Swem would be sharing an office and was immediately uncomfortable with that prospect. ( Id. ¶ 70.) During the fall semester, Jenkins alleges that Swem continued to pursue her romantically and persisted with his advances. ( Id. ¶ ¶ 72-73, 77.) Jenkins alleges that during this time period her " studies began to suffer and she experienced physical signs of distress, including depression, inability to focus, inability to sleep and weight loss." ( Id. ¶ 76.) After she failed a statistics midterm, Jenkins spoke with a counselor at the University's mental health clinic about the situation with Swem. ( Id. ¶ 78.)

At the beginning of November 2011, Jenkins approached Andersen and requested that she no longer be required to share an office with Swem, explaining about Swem's advances towards her. ( Id. ¶ 80.) A new work space was provided for Jenkins in December 2011. ( Id. ¶ 82.) During this time period, Andersen told Jenkins on several occasions essentially that she needed to learn how to handle working with people like Swem. ( Id. ¶ ¶ 83-86.) Shortly thereafter, Andersen and Kennedy began expressing concerns about Jenkins' approach to her Ph.D and became critical of her work. ( Id. ¶ ¶ 87, 103.) Additionally, Andersen and Kennedy continued to discuss portions of Jenkins' work that she would be required to do alone with Swem. ( Id. ¶ ¶ 93-98.) Andersen and Kennedy allegedly refused to implement possible alternatives suggested by the Equal Opportunity Affirmative Action Office (" EOAA" ) at the University that would have prevented Jenkins from having to work alone with Swem. ( Id. ¶ 99-104.) Jenkins ultimately resigned her position at the University on January 27, 2013. ( Id. ¶ 105.)


On February 8, 2013, the EEOA released an official opinion, finding that Swem had violated the University's sexual harassment policy. ( Id.) The EEOA opinion described certain admissions made by Swem during the course of the EEOA's investigation. Specifically, the opinion noted that Swem admitted to making an inappropriate comment about the photograph he had taken of Jenkins' butt. (Larson Aff., Ex. B at 3.) Swem also admitted to expressing a romantic interest in Jenkins " several times." ( Id.) Swem conceded that he had told Jenkins that if she ever had an interest in him she could " just sit on my lap and kiss me," did not deny the horse bite incident, and admitted that he had turned the lights off in his home while the two were listening to music. ( Id.) Swem admitted to making comments that he would apply to be Jenkins' pool boy and to continuing to express a romantic interest in Swem after the second field trip. ( Id., Ex. B at 4-5.)

During the course of the EEOA investigation Swem also admitted, among other things, that he had two conversations with Jenkins about kissing her, acknowledged the power differential between himself and Jenkins, discussed how his actions could be viewed as sexual harassment, called her exceptionally beautiful, and developed a romantic interest in Jenkins. (Supplemental Aff. of Joseph A. Larson, Ex. K, Dec. 24, 2013, Docket No. 75.) Swem also admitted that Jenkins responded negatively to his advances, that he had a crush on Jenkins, and that he continued to ask why

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Jenkins was not interested in a romantic relationship with him. ( Id.)

Additionally, in a letter written by Defendant Andersen, Andersen memorialized a conversation he had with Swem on November 29, 2011, regarding Jenkins. ( Id., Ex. L.) At the meeting Swem

provided his perspective in a general way on what transpired between he and Stephanie over the summer and this fall. In a nutshell, he indicated that he had had a " crush" on Stephanie and made several romantic advances. He indicated that he understood that there was an asymmetry in power between he and Stephanie, especially in the circumstances this summer, and that he had expressed that to Stephanie. He also indicated that he had gotten a variety of responses from Stephanie, and thought that they had parted at the end of the summer as friends.
. . . .
Ted indicated that he had made some mistakes, that he wanted to resurrect a friendship with Stephanie, and that he had told her directly at the end of the summer that he respected her decision about a romantic relationship but wanted to try and move forward professionally and in terms of a friendship.

( Id., Ex. L at 2.)[3]


Swem is the Branch Chief of Endangered Species in the Fairbanks, Alaska, Fish and Wildlife Field Office of the USFWS, and held that position during the time of the events alleged in the complaint. (Compl. ¶ 22; Swem Decl. ¶ 2.) As part of his employment, Swem was engaged in the Project to monitor Arctic Peregrine Falcons

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in Northern Alaska that was part of Jenkins' Ph.D. work. (Swem ...

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