Gabrielle M. v. Il. School Dist. 163

• Decision Date: 14 January 2003
• Docket Number: No. 01-3933.,01-3933.
• Citation: 315 F.3d 817
• Parties: GABRIELLE M., a minor, by and through her parents and next friend, Stanley and Theresa M., Plaintiff-Appellant, v. PARK FOREST-CHICAGO HEIGHTS, ILLINOIS SCHOOL DISTRICT 163 and George McJimpsey, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

315 F.3d 817

GABRIELLE M., a minor, by and through her parents and next friend, Stanley and Theresa M., Plaintiff-Appellant, v. PARK FOREST-CHICAGO HEIGHTS, ILLINOIS SCHOOL DISTRICT 163 and George McJimpsey, Defendants-Appellees.

No. 01-3933.

United States Court of Appeals, Seventh Circuit.

ARGUED July 10, 2002.

DECIDED January 14, 2003.

Alfred T. Whiters, Chicago, IL, Sabrina M. Patch (argued), Homewood, IL, for Plaintiff-Appellant.

Before COFFEY, KANNE, and ROVNER, Circuit Judges.

KANNE, Circuit Judge.

Five-year-old Gabrielle M. began kindergarten at Beacon Hill School in the Park Forest-Chicago Heights School District on August 31, 1998. Gabrielle was one of roughly 20 students in Mary Mulry's class, which was also supervised by teacher's aide Elizabeth Roselli. Mulry's classroom was one of seven kindergarten classes at the school that year.

Gabrielle stated in her deposition that Jason L., another five year old in her class, began "bothering" her on the first day of class (Gabrielle did not explain what she meant by "bothering"). Gabrielle did not tell school officials or her parents about Jason's behavior. Although Gabrielle had been eager to start school, her parents noticed in September that she became reluctant to go to school, crying at the door when it was time to go. She also began wetting her bed and having nightmares around this time. At the time, Gabrielle's parents did not know what caused the changes in her behavior.

In October, Mulry began to notice Jason's problematic behavior. Early in the month, Mulry saw Jason jump on Gabrielle's back at recess. She separated the two, and Jason was suspended from recess for the rest of the week. On October 21, Roselli saw Jason lean against Gabrielle with his hands on his crotch. Roselli removed Jason from the room and took him to the principal's office. The principal, George McJimpsey, was not in his office, so Roselli put Jason in time out, away from other students, and described Jason's behavior to Mulry. Later that day, a student told Mulry that Jason had unzipped his pants and was showing other students his underwear while her back was turned. Roselli again took Jason to McJimpsey's office and informed him of both incidents that occurred that day. McJimpsey told Jason that his behavior was inappropriate and warned him not to repeat it. Roselli and Jason then returned to class and Roselli seated Jason separately from the other students. After school, Mulry called Jason's mother and told her to call McJimpsey about the incidents.

Two days later, Jason again unzipped his pants in class. Mulry separated Jason from the rest of the class, but Jason left his seat and again unzipped his pants in front of other boys. Mulry took Jason to McJimpsey's office, and McJimpsey phoned Jason's mother. Jason received a half hour of after-school detention because of the incident.

On October 28, Mulry noticed that Jason and a classmate, Ashley, had their hands down each others' pants during storytime. Mulry immediately told the two to come over to her and Ashley reported that another girl, Tatiana, was also putting her hands down other students' pants. Mulry asked a teacher's aide to take Jason, Ashley, and Tatiana to the school psychologist, Larry Anthony. Anthony sent for Gabrielle and another girl when the children in his office told him that the two girls were also involved. During Anthony's meeting with the five children, the children informed him that during the previous week they had kissed and jumped on top of one another at recess. Anthony told them that their behavior was inappropriate and that they should tell their parents or teachers when such things occurred. After school, Mulry went to Anthony's office, and Anthony described the meeting to her and called the children's parents. In his notes regarding the incident, Anthony reported that it was "becoming apparent that these Kindergarteners [sic] were not fully aware of the seriousness of their actions."

Theresa, Gabrielle's mother, went to the school the next day to talk with McJimpsey. Theresa then took Gabrielle to lunch to speak with her privately, at which time Gabrielle told her she didn't want to go back to school because Jason had been doing "nasty stuff" to her since her first day.

After returning Gabrielle to school, Theresa told Mulry about her conversation with Gabrielle and that Gabrielle had recently developed problems with nightmares and bedwetting. That day Theresa also asked McJimpsey to move Gabrielle to a different classroom. McJimpsey agreed and also suspended Jason from school for two days. Theresa called McJimpsey the next day to ask that Jason switch classrooms instead of Gabrielle. According to Theresa, McJimpsey initially resisted, but transferred Jason after Theresa threatened to remove Gabrielle from the school. McJimpsey also agreed to assign Jason to different lunch and recess times.

Lunchroom supervisors separated Jason from the other students in the lunchroom for two weeks. After that, Jason returned from isolation and rejoined the other students for lunch. When he returned, Jason's and Gabrielle's classes were still assigned to the same lunch and recess period. Nevertheless, they did not eat together: Jason's class would eat lunch at one table, while Gabrielle's would eat at another. And at recess, a playground supervisor was to ensure that Jason's class did not interact with Gabrielle's class. For example, one group would be allowed to play on the swing and exercise equipment while the other group played on the blacktop. Despite this effort, Gabrielle told her mother that once Jason returned to the same lunch and recess period, he talked to her and said that he "want[ed] to play with me funny ways" at recess. Gabrielle stated in her deposition that she also told her teacher and principal that Jason continued to bother her. Theresa stated that she also complained to McJimpsey. According to McJimpsey, he promptly rescheduled lunch for Mulry's students so that Jason and Gabrielle would not go to lunch or recess at the same time. But according to a letter from Gabrielle's attorney to the school district, Jason continued to bother Gabrielle at lunch and recess until March 1 despite these actions.¹

In early November, Gabrielle's parents took her to her pediatrician because she was experiencing bedwetting, insomnia, nightmares, and loss of appetite. The doctor referred her to a counselor, who diagnosed Gabrielle with acute stress disorder and separation anxiety due to Jason's behavior toward her. Gabrielle continued therapy until May 1999, when her counselor determined that she was asymptomatic.

Sometime in the spring of 1999, Gabrielle's parents asked the school district to transfer her to another school. The school district agreed, and Gabrielle began first grade at Algonquin School. It is not clear when her parents made the request, though McJimpsey stated in his deposition that the Superintendent of Schools granted the request "immediately."

Gabrielle sued McJimpsey for intentional infliction of emotional distress and her school district under Title IX of the Education Amendments of 1972 alleging that Jason's conduct amounted to sexual harassment. Generally, Gabrielle claims that Jason "bother[ed]" her and did "nasty stuff" to her since the beginning of the school year. Moreover, Gabrielle's father, Stanley, testified that Gabrielle had told him that Jason had touched her inappropriately:

Q: Did Gabrielle ever tell you that she had been touched by [Jason]?

A: Yes.

Q: Sexually?

A: Yeah, he fondled pretty much half the girls in the classroom.

Q: Where was it that he was fondling them? Did she tell you?

A: Private parts, chest.

(R. 24, Stanley Dep. at 24:5-13.) Specifically, Gabrielle identifies the events occurring during the week of October 21 (i.e., Jason jumping on her back; Jason pulling down his pants in front of the class; his leaning against Gabrielle in the computer room; and the five students climbing upon and kissing one another) and October 28 (i.e., the story-time incident between Jason, Gabrielle, and other girls in the class) as evidence of Jason's harassing conduct. Gabrielle also claims that after the school district had learned of Jason's conduct and had taken action to separate him from Gabrielle on her mother's request, the two continued to have contact for as long as four months during lunch and recess, where Jason continued "trying to get [her] attention when [she] was trying to eat at lunch time, and kept on wanting to play with [her] funny ways at recess time."

The school district moved for summary judgment arguing that the complained-of conduct did not rise to an actionable level for purposes of Title IX and that, even if it did, the school's response to Jason's conduct was not clearly unreasonable. In awarding summary judgment, the district court found that the school district had actual notice of Jason's behavior as of October 21, when Roselli saw Jason act inappropriately toward Gabrielle. The court then evaluated the district's response to Jason's behavior and found the response to be adequate. The court found that summary judgment therefore was appropriate on Gabrielle's federal claim and accordingly declined to exercise supplemental jurisdiction over the state-law tort claim against McJimpsey.

DISCUSSION

On appeal, Gabrielle argues that the district court improperly granted summary judgment on her Title IX sexual harassment claim. The Supreme Court has held that a school district receiving federal funding may be liable for damages under Title IX when one student sexually harasses another. See Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 633, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999). The court established in Davis that liability may exist "where [funding recipients] are deliberately indifferent to sexual harassment, of which they have actual knowledge, that is so severe, pervasive, and objectively offensive that it can...