Doe v. Sch. Bd. Of Broward County

• Decision Date: 27 April 2010
• Docket Number: No. 09-10394.,09-10394.
• Citation: 604 F.3d 1248
• Parties: Jane DOE, by and through Jane Doe's Mother and Father as parents and natural guardians, Jane Doe's Mother, Jane Doe's Father, individually, Plaintiffs-Appellants,v.SCHOOL BOARD OF BROWARD COUNTY, FLORIDA, Dr. Sam Scavella, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

604 F.3d 1248

Jane DOE, by and through Jane Doe's Mother and Father as parents and natural guardians, Jane Doe's Mother, Jane Doe's Father, individually, Plaintiffs-Appellants,v.SCHOOL BOARD OF BROWARD COUNTY, FLORIDA, Dr. Sam Scavella, Defendants-Appellees.

No. 09-10394.

United States Court of Appeals, Eleventh Circuit.

April 27, 2010.

Stuart S. Mermelstein, Mermelstein & Horowitz, P.A., Aventura, FL, for Plaintiffs-Appellants.

Michael T. Burke, Johnson, Anselmo, Murdoch, Burke, Piper & McDuff, Debra Potter Klauber, Haliczer, Pettis & Schwamm, P.A., Ft. Lauderdale, FL, for Defendants-Appellees.

Appeal from the United States District Court for the Southern District of Florida.

Before WILSON and ANDERSON, Circuit Judges, and RESTANI,^* Judge.

ANDERSON, Circuit Judge:

Jane Doe brought this action, by and through her parents, against the Broward County School Board (“the School Board”) and Dr. Sam Scavella, former principal of her high school (“Scavella”), alleging that she was the victim of sexual harassment by her math teacher. Her complaint included claims under Title IX of the Education Amendments of 1972 (“Title IX”), 20 U.S.C. § 1681 et. seq., and 42 U.S.C. § 1983. The district court granted summary judgment in favor of both defendants. Doe now appeals, arguing that disputed issues of fact remain as to the School Board's liability under Title IX and § 1983, making summary judgment improper, and that Scavella is not protected by qualified immunity from liability under § 1983. Because we find that a reasonable jury could conclude that the School Board responded with deliberate indifference to actual notice of sexual harassment, we reverse the district court's grant of summary judgment with respect to Doe's Title IX claim. We affirm the district court's grant of summary judgment in favor of both the School Board and Scavella with respect to Doe's § 1983 claims.

I. FACTS AND PROCEDURAL HISTORY

In reviewing a grant of summary judgment, we are required to view the facts in the light most favorable to the nonmoving party. Sauls v. Pierce County Sch. Dist., 399 F.3d 1279, 1281 (11th Cir.2005). Therefore, we set forth the facts in the light most favorable to Doe.

Jane Doe was a fifteen-year-old ninth-grade student at Blanche Ely High School (“Blanche Ely”) during the 2006-2007 school year. During that year, Doe was a student in Conraad Hoever's math class. According to Doe's complaint, in March 2007, Hoever sexually assaulted her in his classroom.¹ Blanche Ely's current principal requested a formal investigation, which resulted in Hoever's administrative leave and ultimate termination. Although this was the first instance of sexual harassment by Hoever of Doe, two other female students had previously filed complaints against Hoever for sexual harassment and misconduct. It is the School Board's and Principal Scavella's response to these complaints that forms the basis of Doe's Title IX and section 1983 claims.

The School Board first hired Hoever as a full-time math teacher at Blanche Ely in December 2002. At the end of the 2003-2004 school year, Blanche Ely's principal decided not to renew Hoever's annual contract because of poor teaching and classroom management skills. Dr. Scavella became Blanche Ely's principal at the beginning of the 2004-2005 school year and recommended to the School Board that Hoever be reinstated. It was during the 2004-2005 school year, when Scavella was acting principal, that two different female students filed complaints against Hoever.

A. First Complaint Against Hoever-The K.F. Incident

K.F. was an eleventh-grade student in Hoever's math class. In October 2004, she filed a complaint with Blanche Ely about three incidents occurring in Hoever's classroom. According to her written complaint, during the first week of school K.F. visited Hoever's classroom to ask for assistance with homework. During their meeting, Hoever made inappropriate comments to her, telling her she was “beautiful,” “sexy,” had a “flat stomach,” and a “beautiful smile,” and then gave her his phone number. K.F. told another student, Cassandra about Hoever's conduct the day after the incident. The second incident occurred a few weeks later when Hoever asked K.F. to remain after class. While alone with K.F. in his classroom, Hoever told her that he loved her, wanted to do “business” with her, and wanted her to be his girlfriend because she needed someone “special” to take care of her. When K.F. said she had to go to lunch, Hoever approached her, lifted up her shirt, and commented on her “flat stomach” and her “sexy” physique. K.F. told her cousin about Hoever's advances, and the cousin in turn told K.F.'s legal guardians. Her cousin gave her a tape recorder to secretly record Hoever's comments but her attempt was unsuccessful. Finally, in late October, K.F. alleged that she approached Hoever about her “D” grade in his class, and Hoever told her that she “couldn't have a good grade” because she did not “want to do business.” That day, K.F. reported all of Hoever's alleged sexual advances to Principal Scavella.

Principal Scavella responded by conducting an informal on-site investigation of the alleged misconduct and requested written statements from K.F. and Hoever. In his written statement, Hoever admitted that on one occasion K.F. had asked him to help find her a sponsor for her modeling career, and he had stated that she was “tall, slim, and sexually appealing” for the job, but that finding her a sponsor was “strictly business.” Hoever also stated that he had removed K.F. from his class earlier that day for being disruptive and that K.F. had threatened to go to Scavella on numerous prior occasions, saying “You don't know what I can do.”²

Scavella then contacted the School Board's Special Investigative Unit (“SIU”) and requested a formal investigation through the filing of a Personal Investigation Request, which classified the incident as “sexual harassment.” The following day, SIU Executive Director Dr. Melita assigned the investigation to Officer Wollschlager. The School Board also provided Hoever with notice of the formal SIU investigation and directed him not to “engage the complainant ... in any conversation regarding the matter under investigation”; placed him on administrative leave pending the outcome of the investigation; and banned him from returning to the high school premises.

Investigator Wollschlager interviewed K.F. and obtained her sworn taped testimony about the incident, which largely tracked her prior statements except for the inclusion of an additional incident in which Hoever told her if she “did business” with him then she would not “ever have to work hard” and could have a “B” grade in his class. In his taped sworn statement, Hoever stated that K.F. was a poor student with behavioral problems who had threatened to go to Scavella on several occasions if she did not get a good grade in his class. He also denied ever commenting to K.F. that he wanted to take care of her, “do business,” or that he picked up her shirt and commented on her stomach.

Wollschlager also met with two other students who both stated that they had not seen K.F. and Hoever ever speaking after class. Wollschlager did not interview K.F.'s friend Cassandra, her cousin, or her guardians, the only individuals who allegedly knew of the incidents, because he determined that they had no first-hand knowledge of the events and could only report what K.F. told them. A senior staff member at SIU reviewed the Wollschlager report that the evidence was inconclusive as to whether any sexual misconduct occurred, and the report was sent to the Professional Standards Committee, of which Melita was a member, for a “probable cause” or “no probable cause” finding. The Committee recommended that no probable cause existed for additional disciplinary action against Hoever due to the inconclusive results of the investigation and the fact that the incident was “1 on 1-no video-no eyewitnesses.” Pursuant to school policy, Hoever returned to teach at Blanche Ely for the second semester of the 2004-2005 school year.

B. Second Complaint Against Hoever-The S.W. Incident

Upon his return, Hoever taught an algebra class in which S.W., a tenth-grader, was a student. S.W. filed a complaint against Hoever in May 2005 regarding two incidents of sexual harassment. According to her complaint, some time during the semester Hoever asked her, in response to a question about a math problem, if she wanted to “ride around with him” over the weekend. She declined. Then in May, she and four other female students were listening to music at Hoever's desk during class. Some of the students departed, leaving only S.W. and one other student, Naomi, with Hoever in the classroom. Hoever started making a compact disc of music for S.W. and Naomi, and he allegedly touched S.W.'s leg while trying to hold her hand. At some point, Naomi left, and Hoever and S.W. remained in the classroom alone. He commented that S.W. seemed “very grown up,” that he liked how “soft” her hands feel and how her “lips look.” Then, according to S.W., Hoever “came around his desk to where I was standing and told me to pull up my jacket and my shirt so he can see my stomach.” Hoever followed S.W. as she left the classroom, gave her the compact disc, and appeared to be waiting for her “to give him a hug.”³ She reported the incident immediately. In her deposition, S.W. testified that she had not reported the first incident because she knew that Hoever had gotten in trouble for the same thing before; the school had “only suspended him” in response; and the school was “not going to do anything about it because he's friends with the principal.”

In response to S.W.'s complaint, Scavella testified that he directed the Assistant Principal to conduct an informal on-site investigation.⁴ Several students, none of whom were named in S.W.'s complaint, were asked to give written statements about the incident, and Scavella...