Trentadue v. Redmon

In the

United States Court of Appeals

For the Seventh Circuit

No. 08-3442

R ITA T RENTADUE,

Plaintiff-Appellant,

v.

L EE R EDMON and P EKIN C OMMUNITY

H IGH S CHOOL D ISTRICT N O . 303,

Defendants-Appellees.

Appeal from the United States District Court

for the Central District of Illinois.

No. 1:06-cv-01296—Michael M. Mihm, Judge.

A RGUED S EPTEMBER 23, 2009—D ECIDED A UGUST 18, 2010

Before F LAUM, W OOD , and S YKES, Circuit Judges.

S YKES, Circuit Judge. Sergeant Mark Cole, an instructor

in the Junior Reserve Officer Training Corps (“JROTC”)

program at Pekin High School in Central Illinois, sexually

abused a female student enrolled in the program. Cole

was criminally charged, convicted, and sentenced. Rita

Trentadue, the victim, then brought this lawsuit alleging

a § 1983 claim against Cole and his supervisor Major Lee

Redmon, and a Title IX claim against Pekin Community

2 No. 08-3442

High School District No. 303. Trentadue eventually

dropped her § 1983 claim against Cole. The district court

dismissed the claim against Redmon based on circuit

caselaw holding that Title IX displaces § 1983 as a

remedy against school officials for sex discrimination in

schools. See Delgado v. Stegall, 367 F.3d 668, 673-74 (7th

Cir. 2004); Boulahanis v. Bd. of Regents, 198 F.3d 633, 639-40

(7th Cir. 1999); Waid v. Merrill Area Pub. Sch., 91 F.3d 857,

861-63 (7th Cir. 1996). The district court then granted

summary judgment for the School District on the Title IX

claim because there was no evidence that school

officials knew of Cole’s behavior and failed to stop it.

Trentadue appealed.

We affirm. The Supreme Court’s intervening decision

in Fitzgerald v. Barnstable School Committee, 129 S. Ct.

788, 797 (2009), held that Title IX was not meant to be

an exclusive remedy and therefore does not preclude

suit under § 1983 for gender discrimination in schools.

This displaces our circuit caselaw to the contrary and

undermines the basis for the district court’s dismissal

of the § 1983 claim against Redmon. But the parties

agreed that the record was fully developed on summary

judgment, and based on our review of that record, we

conclude there is no triable issue of material fact on

either the § 1983 claim against Redmon or the Title IX

claim against the School District.

I. Background

During the 2003-2004 school year, Rita Trentadue was

a junior at Pekin High School and participated in the

No. 08-3442 3

JROTC program. Major Lee Redmon supervised the

program and Sergeant Mark Cole was an instructor.

Starting in the summer months before the school year

began and continuing through September 30, 2003, Cole

had sexual contact with Trentadue on multiple occa-

sions. The abuse occurred in the JROTC staff office at

Pekin High and while they were out on drills away

from the high school. On several occasions he moved

his hand across her chest or down the back of her pants

while giving her a hug. He also put his hand between

her legs while she was a passenger in his car returning

from drill practice. Most disturbing of all, when she

fell asleep under a tree during a nighttime drill, he put

his hand inside her pants and touched her genital area.

In early November 2003, Trentadue told her mother,

Mary Hubner, about this sexual abuse, and on the

morning of November 5, Trentadue and her mother

went to the high school to report Cole’s misconduct to

Trentadue’s guidance counselor. They then notified

the school’s principal, who immediately contacted the

district’s superintendent and assistant superintendent

for instruction and personnel. The principal summoned

Cole, informed him of the allegations, and directed him

to report to the Pekin Police Station. The superintendent

and assistant superintendent followed and interviewed

Cole there. When Cole was asked what had happened

with Rita Trentadue, he responded with what was es-

sentially an admission. (He said: “I [expletive] up.”)

The superintendent then asked for and received Cole’s

resignation. Cole was charged with aggravated criminal

sexual abuse and official misconduct and later pleaded

guilty to these crimes.

4 No. 08-3442

On the morning of November 5, as Trentadue and

her mother were reporting Cole’s abuse to school offi-

cials, Trentadue’s stepfather, Conrad Hubner, arrived at

the high school to confront Cole. Instead of finding Cole

in the JROTC office, however, Hubner found Major

Redmon and told him about Cole’s misconduct. Redmon

said he had no knowledge of Cole’s behavior. However,

according to Hubner, Redmon also said this: “Well this

incident has happened before, and it just in time goes

away.” Redmon did not elaborate on this statement at

the time and was not asked to explain it at his deposition.

He did, however, submit an affidavit in connection

with the summary-judgment motion stating that his

reference to “this incident” had nothing to do with

Cole but related instead to an instance of inappropriate

sexual contact between a female JROTC student and

Redmon’s predecessor as supervisor of the program.

Redmon explained that as a result of that incident, his

predecessor’s contract was not renewed.

The local newspaper ran an article about Cole’s arrest

on November 6, the day after Trentadue disclosed the

abuse to school officials. After the charges against

Cole became public, two former Pekin High students

disclosed that they, too, had been sexually abused by

him while in the JROTC program. Mattie Sutton

reported that Cole had sexual contact with her on

several occasions in the spring of 2002, and Carrie

Selby reported that Cole had sexual intercourse with her

in 1996. Redmon testified that he was not aware of

these allegations until the victims publicly reported the

abuse after Cole’s arrest; in fact, Redmon was not even

No. 08-3442 5

employed in the Pekin High JROTC program in 1996

when Selby was sexually assaulted. It is undisputed that

no one else at the school, including the school admini-

strators, knew about any of these incidents until after

Cole resigned in November 2003.

Trentadue filed this lawsuit in the Central District of

Illinois alleging a claim under 42 U.S.C. § 1983 against

Redmon and Cole for violation of her right to equal

protection, and a claim against the School District for

violation of Title IX, see 20 U.S.C. § 1681. Trentadue

later voluntarily dismissed her claim against Cole. The

district court dismissed the § 1983 claim against

Redmon based on caselaw in this circuit holding that

Title IX precludes § 1983 claims of supervisory liability

against school officials. After the completion of discov-

ery, the court entered summary judgment for the

School District on the Title IX claim, and Trentadue

appealed.

II. Analysis

A. Dismissal of the § 1983 Claim Against Major Redmon

We review de novo the dismissal of the § 1983 claim

against Redmon. Justice v. Town of Cicero, 577 F.3d 768,

771 (7th Cir. 2009). Trentadue’s § 1983 claim rested on

a theory of supervisory liability, and the district court

dismissed it on the rationale that Title IX provides an

exclusive remedy against supervisory officials for

sex discrimination in schools and thus precluded

Trentadue’s § 1983 claim. This decision was correct under

6 No. 08-3442

then-controlling circuit precedent. E.g., Doe v. Smith,

470 F.3d 331, 339 (7th Cir. 2006); Delgado, 367 F.3d at 673-

74; Waid, 91 F.3d at 862; see also Middlesex County

Sewerage Auth. v. Nat’l Sea Clammers Ass’n, 453 U.S. 1,

20 (1981).

However, after the district court entered its final judg-

ment but before the parties filed their appellate briefs,

the Supreme Court held that Title IX does not displace

§ 1983 claims against school officials because it was not

intended to be the exclusive remedy for addressing

gender discrimination in schools. Fitzgerald, 129 S. Ct.

at 797. The Court concluded in Fitzgerald that

Ҥ 1983 suits based on the Equal Protection Clause

remain available to plaintiffs alleging unconstitutional

gender discrimination in schools.” Id.

Trentadue argues, and the defendants concede, that

the district court’s dismissal order is erroneous under

Fitzgerald. We agree. Fitzgerald is clear that Title IX

was not meant to replace § 1983 claims alleging viola-

tions of the Equal Protection Clause. Trentadue’s com-

plaint states a cognizable § 1983 claim against Redmon

on a theory of supervisory liability for violation of her

equal-protection rights. Remand would ordinarily be

appropriate but is not necessary here. The evidentiary

record is fully developed, and both the § 1983 and

Title IX claims hinge on the same set of facts, which

Trentadue’s counsel acknowledged at oral argument.

Accordingly, we move to the question whether there is

a material factual dispute for trial on either of

Trentadue’s claims.

No. 08-3442 7

B. Summary Judgment on the Title IX and § 1983 Claims

Our review is de novo, Springer v. Durflinger, 518

F.3d 479, 483 (7th Cir. 2008), and summary judgment

is appropriate when the record reflects that there is no

issue of material fact to be tried and the moving party

is entitled to judgment as a matter of law. FED. R. C IV.

P. 56(c); see also Springer, 518 F.3d at 483. We construe

the facts and draw all reasonable inferences in favor

of the nonmoving party—in this case, Trentadue. See

Springer, 518 F.3d at 484. Once the defendants have

shown that the facts entitle them to judgment in their

favor, the burden shifts to Trentadue to identify some

evidence in the record that establishes a triable factual

issue. Dugan v. Smerwick Sewerage Co., 142 F.3d 398, 402

(7th Cir. 1998). To satisfy this burden, Trentadue must

show more than “some metaphysical doubt as to the

material facts,” Springer, 518 F.3d at 484 (quotation

marks omitted), and neither speculation nor generic

challenges to a witness’s credibility are sufficient to

satisfy this burden, id.

Redmon’s liability under § 1983 as Cole’s supervisor

requires some evidence that he knew about Cole’s

sexual misconduct and facilitated, approved, condoned,

or turned a blind eye to it. Hildebrandt v. Ill. Dep’t of

Natural Res., 347 F.3d 1014, 1039 (7th Cir. 2003) (citing

Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995)).

Similarly, the School District’s liability under Title IX for

a teacher’s sexual harassment of a student requires evi-

dence that a school official with authority to institute

corrective measures had actual knowledge of Cole’s

8 No. 08-3442

misconduct and was deliberately indifferent to it. Hansen

v. Bd. of Trs. of Hamilton Se. Sch. Corp., 551 F.3d 599, 605

(7th Cir. 2008).

It is undisputed that no administrator or official in the

Pekin School District knew about Cole’s sexual abuse of

Sutton or Selby prior to their public disclosure of that

abuse in November 2003 following the local news re-

ports.1 It is also undisputed that no one at the school—

including Redmon, Cole’s JROTC supervisor—knew

about Cole’s abuse of Trentadue until she and her

mother reported it to school officials on November 5,

2003. As such, both of Trentadue’s claims turn on

whether Redmon knew about Cole’s sexual abuse of

Sutton or Selby.2 Her entire argument on this critical

point rests on the statement Redmon made to Conrad

Hubner, Trentadue’s stepfather, in which Redmon said

that “this incident has happened before, and it just in

time goes away.”

1

Trentadue testified at her deposition that her ex-boyfriend

suggested that Cole may have had some sort of inappropriate

contact with Mattie Sutton. However, there is no indication

in the record, and Trentadue does not argue, that any school

officials were aware of this.

2

For Trentadue to state a prima facie case against the School

District under Title IX, Redmon must also be considered a

school official with authority to institute corrective measures.

See Hansen v. Bd. of Trs. of Hamilton Se. Sch. Corp., 551 F.3d

599, 605 (7th Cir. 2008). We have not previously considered

whether the head of a JROTC program is such an official, but

we need not answer the question here because Trentadue

cannot establish the existence of a triable issue of fact.

No. 08-3442 9

Trentadue maintains that a reasonable jury could take

Redmon’s reference to “this incident” to mean that

Redmon knew about Cole’s earlier abuse of either

Selby, Sutton, or both. This is little more than an invita-

tion to speculation. There is no evidence to support this

interpretation of Redmon’s reference to “this inci-

dent”—nothing, that is, to make it reasonable to infer

from his generic phraseology that Redmon had specific

knowledge of Cole’s prior misconduct involving Selby

or Sutton. To the contrary, Redmon testified via

affidavit that he had no knowledge of Cole’s abuse of

either student until they came forward and reported it

in November 2003. He also explained in the affidavit

that his reference to “this incident” was directed at mis-

conduct committed by his predecessor as supervisor

of the JROTC program, which had led to the nonrenewal

of the predecessor’s contract. As such, the burden

shifted to Trentadue to identify some evidence creating

a genuine issue for trial on the key threshold question

of Redmon’s knowledge of Cole’s prior sexual abuse of

his students. See Dugan, 142 F.3d at 402.

Trentadue suggests Conrad Hubner’s deposition testi-

mony is enough to get her case to a jury. Hubner testified

that when Redmon said “this . . . has happened before” and

“just in time goes away,” he thought Redmon must have

meant that “the problem gets swept underneath the

rug” or “they ignore the problem.” This assumption, too,

is based on speculation, not evidence or inferences rea-

sonably drawn from evidence about Redmon’s prior

knowledge. Trentadue did not question Redmon at his

deposition about the meaning of this statement, and so

10 No. 08-3442

Redmon’s affidavit is the only explanation of it that is

properly in the record. This explanation is uncontro-

verted as an evidentiary matter and cannot be overcome

by mere speculation. See Adams v. Wal-Mart Stores, Inc.,

324 F.3d 935, 939 (7th Cir. 2003).

Finally, Trentadue argues in the alternative that the

School District might be held liable under Title IX based

on a theory of student-on-student harassment. This

argument is premised on the isolation and mistreatment

she claims to have suffered after her disclosure of Cole’s

abuse became public. She reports that she lost nearly all

of her friends, other students taunted her, a student

put gum in her hair, and another was arrested for

making an unspecified threat against her. Trentadue

sought counseling and says she suffered from recurring

nightmares.

A school district may incur Title IX liability for student-

on-student sexual harassment if the district was deliber-

ately indifferent to harassment that was so pervasive,

severe, and objectively offensive that it denied the

student equal access to education. Davis v. Monroe County

Bd. of Educ., 526 U.S. 629, 649 (1999); Gabrielle M. v. Park

Forest-Chi. Heights, Ill. Sch. Dist. 163, 315 F.3d 817, 821

(7th Cir. 2003). Trentadue cites no legal support for

her alternative theory of Title IX liability and has other-

wise failed to adequately develop this argument, and

underdeveloped arguments are considered waived.

Anderson v. Hardman, 241 F.3d 544, 545 (7th Cir. 2001)

(insufficiently developed arguments are waived); see also

F ED. R. A PP. P. 28(a)(9). Apart from the waiver, however,

No. 08-3442 11

the record simply does not suggest Trentadue was sub-

jected to student-on-student sexual harassment that was

so pervasive, severe, and objectively offensive as to

deny her equal access to education in violation of

Title IX. See Gabrielle M., 315 F.3d at 822 (general accusa-

tions do not support a cause of action). The defendants

have noted, to the contrary, that Trentadue’s grades did

not suffer, she was not extensively absent from school,

she graduated with a class rank of 27 out of over 500, and

thereafter enrolled in college. See id. at 823. Therefore,

the record does not support Trentadue’s alternative

argument for Title IX liability.

Cole’s treatment of Trentadue was appalling, but

the record falls short of establishing a basis for § 1983 or

Title IX liability against Redmon or the School District,

respectively. Accordingly, we A FFIRM the entry of sum-

mary judgment dismissing Trentadue’s Title IX claim

against the School District and likewise A FFIRM the dis-

missal of her § 1983 claim against Redmon, though on

the alternative grounds explained in this opinion.

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