KB v. Daleville City Board of Ed, 093013 FED11, 12-125518

Docket Nº:12-125518
Opinion Judge:PER CURIAM:
Party Name:KB, et al, Plaintiff-Appellant, v. DALEVILLE CITY BOARD OF ED, Defendant-Appellee.
Judge Panel:Before MARTIN, JORDAN, and FAY, Circuit Judges.
Case Date:September 30, 2013
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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KB, et al, Plaintiff-Appellant,

v.

DALEVILLE CITY BOARD OF ED, Defendant-Appellee.

No. 12-125518

United States Court of Appeals, Eleventh Circuit

September 30, 2013

DO NOT PUBLISH

Appeal from the United States District Court for the Middle District of Alabama D.C. Docket No. 1:11-cv-00362-WKW-TFM

Before MARTIN, JORDAN, and FAY, Circuit Judges.

PER CURIAM:

ES brought this action on behalf of her daughter, KB, against the Daleville City Board of Education, alleging that KB was sexually harassed by the school custodian, Alan Moody. The district court granted summary judgment on ES' only remaining claim, which was based on Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et. seq. ES now appeals, asserting that genuine issues of material fact remain in dispute, and that summary judgment is therefore improper.

ES presented evidence that in 2009 Mr. Moody intentionally placed his entire hand upon KB's buttocks in the school cafeteria, and that Mr. Moody, after being instructed to avoid contact with KB, violated that command by entering the lunchroom during her lunch hour. At the summary judgment stage of proceedings, we accept these facts and draw all reasonable inferences in the light most favorable to ES. Nevertheless, because we conclude that a reasonable jury could not find that the School Board acted with deliberate indifference to actual notice of sexual harassment, as required under Title IX, we affirm.

I. STANDARD OF REVIEW

We review de novo the grant of summary judgment, applying the same legal standards used by the district court. See Doe v. Sch. Bd. of Broward Cnty., Fla., 604 F.3d 1248, 1253 (11th Cir.2010). These legal standards require that we view the facts, and resolve all reasonable inferences, in favor of the non-moving party. See Hawkins v. Sarasota County Sch. Bd., 322 F.3d 1279, 1280-81 (11th Cir.2003). Summary judgment should only be granted if the record reveals that there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Id.

II. DISCUSSION

A. The School Board's Liability under Title IX

Title IX provides that "[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." 20 U.S.C. § 1681(a). The Supreme Court has recognized an implied right of action for monetary damages under Title IX for claims involving intentional sexual discrimination, and has held that a teacher's sexual harassment of a student is actionable as discrimination under Title IX. See Franklin v. Gwinnett Cnty. Pub. Sch., 502 U.S. 60, 75-76 (1992). In cases of sexual harassment of a student by a teacher, our inquiry is governed by Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (1998).

In Gebser, the Supreme Court made it clear that school district liability for violations of Title IX will not lie in all cases of teacher-on-student sexual harassment. "Title IX is predicated upon notice to an 'appropriate person' and an opportunity to rectify any violation." Id. at 290 (citing 20 U.S.C. § 1682). Therefore, the Court explained, school districts cannot be held liable on a theory of respondeat superior or even constructive notice. Id. at 285. Title IX liability only arises where "an official of the school district who at 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." Id. at 290.

Under Gebser, a Title IX plaintiff must identify a school district official with the authority to take corrective measures in response to actual notice of sexual harassment. See Floyd v. Waiters, 171 F.3d 1264, 1264 (11th Cir.1999). The actual notice must be sufficient to alert that official to the possibility of the plaintiff's sexual harassment. See Gebser, 524 U.S. at 291. And, that official must respond with deliberate indifference. See Sauls v. Pierce Cnty. Sch. Dist., 399 F.3d 1279, 1284 (11th Cir.2005).

B. The Employee/Student Victim Distinction

In applying the Gebser framework to ES' Title IX claim, the district court noted the following:

With one exception, all of Mr. Moody's prior incidents of harassment were directed at other employees, not students. While such a history, if proven, could suggest Mr. Moody might harass an adult coworker, ES has not explained why it should have put the School Board on notice that Mr. Moody was a danger to students.

Doc. # 44 at 6 (emphasis in original). The district court went on to hold that "Mr. Moody's history of harassing coworkers is insufficient to meet the actual-notice requirement of ES' Title IX claim." Id. In support of its holding, the district court cited Hackett v. Fulton County Sch. Dist., 238 F.Supp.2d 1330...

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