Elborough v. Evansville Community School District

• Decision Date: 23 June 2009
• Docket Number: No. 08-cv-447-bbc.,08-cv-447-bbc.
• Parties: Ivyanne ELBOROUGH, by her next friend Deborah St. Aubin-Elborough, Plaintiff, Dean Health Plan, Inc., Involuntary Plaintiff, v. EVANSVILLE COMMUNITY SCHOOL DISTRICT and Ron Grovesteen, Defendants.
• Court: U.S. District Court — Western District of Wisconsin

636 F.Supp.2d 812

Ivyanne ELBOROUGH, by her next friend Deborah St. Aubin-Elborough, Plaintiff Dean Health Plan, Inc., Involuntary Plaintiff, v. EVANSVILLE COMMUNITY SCHOOL DISTRICT and Ron Grovesteen, Defendants.

No. 08-cv-447-bbc.

United States District Court, W.D. Wisconsin.

June 23, 2009.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Jeff Scott Olson, Andrea Joyce Farrell Jeff Scott Olson Law Firm, Madison, WI, for Plaintiff.

Krista K. Buchholz, Leib & Katt, LLC, Milwaukee, WI, for Defendants.

OPINION and ORDER

BARBARA B. CRABB, District Judge.

Plaintiff Ivyanne Elborough joined the Evansville High School freshman football team in the beginning of August 2007 as the only female team member. She alleges that for the next few weeks, defendants Evansville Community School District and Ron Grovesteen (the head football coach) discriminated against her on the basis of sex by failing to keep the girls' locker room unlocked, keeping snacks and the practice schedule in the boys' locker room where she was not allowed and telling her she needed to get her hair cut "like a boy."

On August 30, after plaintiff's mother had complained about these matters to defendant Grovesteen and two school administrators, plaintiff came to practice without protective equipment because she had been unable to find anyone to unlock the girls' locker room. What happened next is the primary impetus for this law suit: plaintiff participated in a number of practice drills without any pads and defendant Grovesteen did not stop her from doing so. Plaintiff hurt her shoulder during one practice drill and then fractured her clavicle during another.

Plaintiff brings claims against the district under Title IX of the Education Amendments of 1972, the due process clause and state law and against defendant Grovesteen under the equal protection clause, the due process clause and state law. Two motions are before the court: (1) defendants' motion for summary judgment; and (2) plaintiff's motion to disregard new evidence submitted with defendants' reply submissions.

Plaintiff's motion will be granted. In accordance with circuit law and this court's summary judgment procedures, I have not considered any evidence or argument submitted for the first time with the reply brief or any facts included in a brief but not in the proposed findings of fact. Nelson v. La Crosse County Dist. Attorney, 301 F.3d 820, 836 (7th Cir.2002) (arguments raised for the first time in the reply brief are waived); Procedure to Be Followed on Motions for Summary Judgment I.B.4 ("The court will not consider facts contained only in a brief.").

Defendants' motion for summary judgment will be denied with respect to plaintiff's claims under the equal protection clause and state law. A reasonable jury could find that defendant Grovesteen allowed plaintiff to play without protective equipment because of her sex (for the purpose of her equal protection claim) and that he disregarded a "known danger" (for the purpose of her state law claim). Plaintiff's other claims must be dismissed. With respect to her Title IX claim, plaintiff has failed to show that the district had adequate notice of the alleged discriminatory acts against her. With respect to her due process claim, she has failed to show that defendants created the dangerous situation; their alleged violation was a failure to stop plaintiff from harming herself, which is not enough to establish a claim under the due process clause.

From the parties' proposed findings of fact and the record, I find the following facts to be undisputed.

UNDISPUTED FACTS

Beginning on the first Monday in August 2007, plaintiff Ivyanne Elborough was a member of the Evansville High School freshman football team. Defendant Ron Grovesteen was the head football coach.

Safety equipment for practices is stored in the locker rooms. Plaintiff's equipment was stored in the girls' locker room; she was not allowed in the boys' locker room. Sometimes, plaintiff was unable to get into her locker room because it was locked to prevent theft. To get in, plaintiff had to find someone with a key to open the door, which made her late for practice. Defendant Grovesteen required latecomers to do push-ups.

Pretzels were available in the boys' locker room as snacks but plaintiff was not allowed there. A practice schedule was posted in the boys' locker room but not in the girls' locker room. Practices started at the same time every day.

On August 27, plaintiff's mother, Deborah St. Aubin-Elborough, complained to defendant Grovesteen and Andrew Lehman (the junior varsity football coach) about plaintiff's inability to get into the girls' locker room. Grovesteen said he did not have a key to the locker room. When St. Aubin-Elborough asked Grovesteen whether he could get a key, he repeated that he did not have one. When she asked him, "Don't they trust you with a key to the girls' locker room?" he said "Nope, not to the girls' locker room." (Defendants say that they dispute the "details" of St. Aubin-Elborough's conversation with Grovesteen, but I have treated plaintiff's proposed facts on this issue as undisputed because defendants failed to set forth their version of the facts). Procedure II.D.2 ("If you dispute a proposed fact, state your version of the fact and refer to evidence that supports that version.").

Contrary to Grovesteen's statement, he did have a key that opened the girls' locker room at this time. (The parties dispute whether Grovesteen knew that his "universal" key opened the girls' locker room.) Lehman agreed to help insure that the locker room would be open for plaintiff.

A day or two later, St. Aubin-Elborough spoke with Brian Cashore, the athletic director and associate principal. She repeated her concern that plaintiff could not get into the locker room. In addition, she complained that defendant Grovesteen had told plaintiff that she had to get her hair cut like a boy and that plaintiff did not receive the snacks that the male players received. Cashore told St. Aubin-Elborough that he would try to make sure the locker room was open for plaintiff.

On August 30, St. Aubin-Elborough spoke to Heidi Carvin, the district administrator, about the same concerns. St. Austin-Elborough said that even after plaintiff had gotten her hair cut as instructed by defendant Grovesteen, he singled plaintiff out, telling her that she needed to get her hair cut like a boy. In addition, St. Aubin-Elborough said that she was concerned about plaintiff's not having access to the girls' locker room and her equipment. Carvin told plaintiff that she would talk to the athletic director about these concerns. Carvin did this, but she does not remember whether it was on the same day. She believed that defendant Grovesteen had more important things to do than locking and unlocking doors.

On August 30, plaintiff found the door to the girls' locker room locked again when she tried to get in before football practice. This time, however, she could not find anyone to unlock the door and she was unable to put on her protective equipment for practice. (Plaintiff proposes as a fact that there were other days that she was unable to find someone to unlock the door, but the testimony she cites does not support the proposed fact.) Normally, when a player appeared at practice without equipment, the response from staff was to find equipment for the player to wear. Defendant Grovesteen knows that proper equipment is needed to help reduce the risk of serious injury when playing football.

Defendant Grovesteen offered plaintiff and the other freshman players a choice between participating in drills with the junior varsity and varsity players or just watching. Plaintiff participated in the drills. Plaintiff hurt her right shoulder when she was conducting a drill involving a somersault. She continued on to the next drill, which was a form-blocking drill. She fractured her right clavicle during practice.

DISPUTED FACTS

The parties dispute whether:

• a practice schedule was posted in a hallway that was accessible to both sexes;

• defendant Grovesteen told plaintiff when no one else was present that "getting her hair cut to look like a boy was a commitment she was going to have to make to be on the football team";

• plaintiff received a "permanent team jersey" like the boys on the team did;

• the athletic director spoke to defendant Grovesteen and Lehman about making sure the door to the girls' locker room was unlocked;

• plaintiff was the only player participating in the drills on August 30, 2007 who was not wearing pads;

• whether there were other instances in which plaintiff showed up for practice without pads.

OPINION

A. Title IX: Defendant Evansville School District

Under Title IX, "no person . . . 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). Although the primary enforcement mechanism of the statute is the withdrawal of federal funds, the Supreme Court has inferred a private right of action against educational institutions such as school districts when the district has a discriminatory practice or policy, Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979), or the district has "actual notice" of and is "deliberately indifferent" to discrimination on the basis of sex by its employees. Gebser v. Lago Vista Independent School District, 524 U.S. 274, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998). Individuals may not be sued. Smith v. Metropolitan School District, Perry Township, 128 F.3d 1014, 1019 (7th Cir.1997). The parties agree that the district receives federal financial assistance and that the football team is an "education program or activity" within the meaning of the statute.

The question is whether the district "subject[ed] [plaintiff] to discrimination" on "the...