Plamp v. Mitchell School Dist. No. 17-2

• Decision Date: 12 May 2009
• Docket Number: No. 08-2700.,08-2700.
• Citation: 565 F.3d 450
• Parties: Brittany Ann PLAMP, Appellant, v. MITCHELL SCHOOL DISTRICT NO. 17-2, Appellee, Andrew Tate, Third Party Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

565 F.3d 450

Brittany Ann PLAMP, Appellant, v. MITCHELL SCHOOL DISTRICT NO. 17-2, Appellee Andrew Tate, Third Party Appellee.

No. 08-2700.

United States Court of Appeals, Eighth Circuit.

Submitted: March 11, 2009.

Filed: May 12, 2009.

Richard D. Casey, argued, Sioux Falls, SD (Ryland Deinert and Dana Van Beek Palmer, on the brief), for Appellant.

Naomi R. Cromwell, argued, Pierre, SD (Michael F. Tobin, Paul W. Tschetter, on the brief, Sioux Falls, SD, Naomi R. Cromwell, on the brief, Pierre, SD), for Appellee.

Before MURPHY, MELLOY, and SHEPHERD, Circuit Judges.

MELLOY, Circuit Judge.

Brittney Plamp filed this suit against the Mitchell School District ("School District") after she was battered by one of her high-school teachers, Andrew Tate. Plamp asserted claims under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681-88; a constitutional civil-rights claim under 42 U.S.C. § 1983; and a state-law battery claim based on a South Dakota vicarious-liability law. The School District filed a third-party, state-law-based complaint against Tate for failure to report, failure to comply with School District policy, contribution, and employee misconduct.

The district court¹ granted summary judgment in favor of the School District as to Plamp's § 1983 claim. The district court retained jurisdiction over the remaining claims and held a jury trial. At the close of its case, the School District moved for judgment as a matter of law on Plamp's Title IX claim, which the district court granted. Upon submission of the remaining claims, the jury found that while Tate had battered Plamp, the School District was not vicariously liable for that battery. Plamp appeals, arguing that the court erred with respect to its disposition of the Title IX and § 1983 claims. Plamp further argues that the adverse vicarious-liability verdict was not supported by the evidence. Finally, Plamp argues that the court erred in refusing to instruct the jury that it was prohibited from considering the source of any potential damage payment to Plamp and erred in excluding certain evidence relevant to the § 1983 and Title IX claims. We affirm the decisions of the district court and the jury's verdict.

I.

Plamp was a student at Mitchell High School from Fall 2002 until her graduation in Spring 2006. Tate had been employed at the school since 1988, and in addition to teaching an American government course, he was the boys wrestling and golf coach. While Plamp was acquainted with Tate because her boyfriend was a wrestler, the first time that she was in one of Tate's classes was during the 2005-06 school year. Tate's harassment of Plamp began while she was a student in that class.

Tate was aware that Plamp suffered from anorexia nervosa and used that information as pretext to engage in inappropriate behavior. Plamp testified that Tate would often call her to his desk during class while others were engaged in group work and question her about her eating disorder and her treatments for the illness. On one occasion, Tate requested that Plamp bring in a photograph of herself with few clothes on so that he could see signs of her anorexia. In addition to these comments and requests, Plamp testified that Tate would caress her shoulders and once made a statement about her "knockout body." He also told Plamp that she should eat more so that her breasts were not so disproportionate to her "skinny" body. At the time, Plamp kept most of what Tate said to herself; although, she did mention his comment about her "knockout body" to her mother sometime in the Spring of 2006.

On May 8, 2006, after Plamp had missed Tate's class for a doctor's appointment, Tate requested that she come to his room early the next day. When she entered his classroom the next morning, Tate began talking about his familiarity with eating disorders, and he requested that Plamp "come over" to him because he wanted "to see the signs of [her] being anorexic." In an area of the room not visible to those outside of the classroom, Tate proceeded to batter Plamp. Tate then attempted to engage Plamp in a conversation about her sex life and sexual preferences. No one entered the room during their encounter. When the bell rang to indicate the beginning of morning classes, Tate told Plamp that he wanted her to return the next morning so that he could weigh her without any clothing. He also told Plamp to refrain from mentioning their meeting to anyone, including her parents and boyfriend. That same day, however, Plamp revealed to her best friend and boyfriend what had happened. Two days later, on May 11, she told her mother and father. Plamp's parents immediately reported Tate's conduct to the School District's superintendent, Dr. Joseph Graves. Both Plamp's mother and Superintendent Graves called the police. Graves immediately suspended Tate and refused to allow him on school property without a police escort. The School District eventually terminated Tate.

It is undisputed that May 11 was the first time that the School District was made aware of Tate's harassment of Plamp. The testimony and evidence admissible at trial, however, indicated that there were occasional concerns about Tate's behavior throughout his years as a teacher. The district court admitted evidence of three specific instances at trial. First, sometime around 1995, an anonymous man spoke with Judy Thiesse, the school's guidance counselor. The man claimed that his fiancée (who was a former student at Mitchell High School) was having sex-related problems because of her experiences with Tate. Thiesse referred the man to the then principal, Terry Aslesen. Aslesen testified that the man wanted a male teacher fired, but he refused to tell Aslesen the name of the teacher, what class the teacher taught, or the name of his fiancée. The man would not discuss his fiancée's problem in further detail and left the school after Aslesen said that he would need more information in order to act on the man's concerns.

The second instance occurred sometime in 2000. At that time, a female student complained to Thiesse that she felt "uncomfortable" in Tate's class. Thiesse accompanied the student to the then and current principal, Yvonne Palli's, office to talk about the matter further. While in Palli's office, the student refused (or was unable) to articulate why she was uncomfortable in Tate's class. As an accommodation, the student was allowed to sit at the desk closest to the door in Tate's room. The school also provided her with a permanent hall pass. More recently, during the 2004-05 school year, another female student complained to Thiesse that Tate made her feel uncomfortable in class. This student was able to describe her discomfort in greater detail than the previous student and informed Thiesse that Tate was using instances of graphic sexual violence against women to teach various parts of his class. She expressed concern that Tate appeared to garner pleasure at this. Thiesse took the student's complaint to Palli, and Palli promised to speak with Tate. According to Palli's testimony, she informed him that his lessons were making students uncomfortable. The student did not complain to Thiesse or Palli further.

Plamp sought to introduce additional evidence of Tate's allegedly inappropriate behavior in the form of testimony from various teachers and students. Such evidence included a student's statement that she and two other students had discussed Tate's sexual advances and that a teacher had overheard their complaints; a teacher's testimony that female students had told him that Tate looked down female students' shirts when he passed out papers, that he had heard students call Tate "creepy," and that students told him that Tate gave better grades when female students "dressed like [ ] whore[s]"; another teacher's testimony that students had called Tate a "pervert," that the teacher's own daughter had complained about Tate's inappropriate comments, and that Thiesse had stopped him in the hall and told him that many females had complained about Tate; a student's testimony that Theisse had told the student that there had been "problems with Tate in the past" and that Theisse had told Aslesen about the problems, but that Aslesen had done nothing; and evidence that the School Board President had sent Aslesen and Tate photographs of partially nude adult-female golfers via his official school e-mail account. The district court excluded much of the testimony on the grounds that it failed to establish that the legally relevant persons had notice of Tate's misconduct or a pattern of unconstitutional behavior generally. It further determined that the remaining evidence was inadmissible hearsay.

The School District has had a sexual-harassment policy since 1993, and that policy was in effect at all times relevant to this action. The School District reviewed and revised the policy in 1994, 1998, and 2000. The School District reviewed the policy again in 2003. The School District provides School District staff members with a copy of that policy at the beginning of each school year. The district court found the School District's policy and that of the Associated School Boards of South Dakota to be almost identical. In addition to the written policy, the School District staff members are provided with workshops and training on sexual harassment, child abuse, and all the relevant reporting requirements under state law. Such polices are also posted in the administrative offices and staff areas of each school in the School District. The School District also has a coordinator responsible for ensuring proper compliance with Title IX. The School District further operates with a student-grievance procedure that is contained within the student handbook. The handbook contains information about the School District's sexual-harassment policy, and students received training about that policy during the 2004, 2005, and 2006 school years.

II.

A. Title...