Warren v. Reading School District

Opinions of the United

2002 Decisions States Court of Appeals

for the Third Circuit

1-23-2002

Warren v. Reading Sch Dist

Precedential or Non-Precedential:

Docket 0-1148

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Filed January 23, 2002

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 00-1148

ROBERT WARREN, A MINOR, BY AND THROUGH LORI

A. GOOD, HIS PARENT AND NATURAL GUARDIAN

v.

READING SCHOOL DISTRICT; GERALDINA SEPULVEDA,

IN HER INDIVIDUAL AND OFFICIAL CAPACITY AS

PRINCIPAL OF THE 10TH AND GREEN ELEMENTARY

SCHOOL; JAMES A. GOODHART, IN HIS INDIVIDUAL

AND OFFICIAL CAPACITY AS SUPERINTENDENT OF THE

READING SCHOOL DISTRICT

Reading School District,

Appellant

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

Civil Action No. 97-cv-4064

District Judge: Hon. J. Curtis Joyner

Argued: December 4, 2000

Before: McKEE, ROSENN and CUDAHY,*

Circuit Judges

(Opinion Filed: January 23, 2002)

_________________________________________________________________

* The Honorable Richard D. Cudahy, Senior Judge for the United States

Court of Appeals for the Seventh Circuit sitting by designation.

DAVID R. DAUTRICH, ESQ. (Argued)

526 Court Street

Reading, PA 19601

Attorney for Appellee

FREDERICK B. BUCK, III, ESQ.

(Argued)

Rawle & Henderson

1339 Chestnut Street

16th Floor

Philadelphia, PA 19107

Attorney for Appellant

OPINION OF THE COURT

McKEE, Circuit Judge.

Lori Good brought this action on behalf of her minor son,

Robert Warren, seeking damages under Title IX for sexual

abuse he received at the hands of his fourth grade teacher

in a school that was part of the defendant school district.

Plaintiff also contends that the school's principal was

individually liable for damages under 42 U.S.C.S 1983. The

jury returned a verdict against the school district under

Title IX, but found the principal was not liable under

S 1983. The district court refused to grant a renewed

defense motion for judgment as a matter of law or grant a

new trial, and awarded plaintiff attorney's fees. This appeal

followed. For the reasons set forth below, we will reverse

and remand for a new trial on plaintiff 's Title IX claim.

I. FACTUAL BACKGROUND

In April 1995, Robert Warren transferred into the

Reading School District's Tenth and Green Elementary

School where he was assigned to Harold Brown's fourth

grade class. At some point after Robert's transfer, Robert

remained after school at Brown's request. While Robert

remained in the classroom, Brown locked the classroom

door, and asked Robert to play a "game" that Brown called

"shoulders." This consisted of Robert squatting with his

2

head between Brown's legs and placing his shoulders under

Brown's thighs. Robert would then lift Brown's upper body

from this squatting position as Brown leaned forward. As

Robert lifted, Brown's genitals touched the back of Robert's

head and neck. Brown challenged Robert to squat and lift

as many times as he could and Brown "rewarded" Robert

with candy or money when the "game" was over. Brown

apparently repeated this routine two or three times per

week during the school year. On at least one occasion

during the following summer, Brown also drove by Robert's

house in order to pick Robert up and take him to a"secret

spot" near the woods where they again played"shoulders."

In early November 1995, Lori Good discovered her son's

journal and read an entry in which Robert described

playing "shoulders" with Brown at a secret spot. Good

immediately became concerned and spoke to Robert about

the entry. After that discussion, Good reported Brown's

conduct to the Berks County Children and Youth Services.

That agency reported Brown's suspected abuse to the

school district, and Brown was suspended, and ultimately

resigned his position.1

A short time later, Good initiated a civil rights action

under 42 U.S.C. S 1983 seeking damages from the Reading

School District, Dr. Sepulveda, the principal of Tenth and

Green Street School; and Dr. James A. Goodhart, the

former superintendent of the Reading School District. The

suit included a state law claim against Sepulveda and

Goodhart under 42 Pa. C.S.A. S 8550. Good subsequently

amended the complaint to add a private cause of action for

damages against the school district under the Education

Amendments of 1972, 20 U.S.C. S 1681 et. seq. (Title IX).

The district court granted summary judgment in favor of

the defendants and against Robert on all claims except the

Title IX claim against the school district and theS 1983

claim against Sepulveda. Those claims proceeded to trial.

_________________________________________________________________

1. The briefs of the parties confirm that Brown surrendered to authorities

and was thereafter arrested on three criminal complaints detailing sexual

abuse of several male students. He was thereafter prosecuted in the

Court of Common Pleas of Berks County. Commonwealth of Pennsylvania

v. Harold Brown, Criminal Nos. 1677/96, 973/96, 2107/96.

3

Carlos Mercado testified at trial for the plaintiff.

Mercado's son had been a student at Tenth and Green

Elementary School in the early 1990s. Mercado testified

that he went to that school sometime in 1992 or 1993 and

spoke with Sepulveda regarding his concerns about Brown

engaging in inappropriate activity with his son. The

following exchange occurred during Mercado's testimony:

Q: And what did you say to the principal that day,

Mr. Mercado?

A: I told her that I wanted to talk to her about Mr.

Brown taking my kid to his house, that there's no

reason for him to take him to his house and give him

money to lift him up and down. She told me that she

was too busy to listen to me at that time. She told me

to talk to Mr. Vecchio [the guidance counselor].

* * *

Q: Did you talk to Mr. Vecchio?

A: Yes. . . . I told him -- she told me to go to him, so

I went to him. He said what was the problem. I told

him that I wanted to talk to him about Mr. Brown

taking my kid to his house and lifting him up and

down and giving him money. There was no reason for

that.

Q: Mrs. Sepulveda, did she stay at the office?

A: No, she walked out.

Appendix at 129-30.

Mercado testified that Vecchio said he was going to talk

to Brown and "get back to me," but Mercado never heard

anything further from Vecchio, Sepulveda, or anyone else at

the school. According to Mercado, Sepulveda appeared to

be in a hurry, and upset about something when he tried to

speak to her. He testified: "I couldn't describe it to the lady

because she was too much in a hurry. She was going out."

Id. at 139-40. Vecchio and Sepulveda also testified, but

they both denied having any such conversation with

Mercado.

Plaintiff also introduced the testimony of Dr. Susan

Kraus, an expert in psychology and sexual abuse of

4

children. She testified that the "shoulders" game that

Robert described was actually a masturbatory exercise

engaged in for sexual gratification. According to her

testimony, "games" such as this are nothing more than

sexual activity. They did not constitute anything that could

be regarded as "horseplay."

Dr. Chester Kent also testified for plaintiff over the

defendants' objection. Kent was an expert in the field of

school policy, procedure and administration, with a

subspecialty in cases involving molestation or abuse of

children. He opined that the Dr. Sepulveda's internal

policies for student safety were highly deficient and not

conducive to protecting the health, safety, or welfare of the

students at the school. App. 231, 239, 243, 250-1. He also

surmised that, given the number of children that had been

victimized by Brown, the level of activity in Brown's

classroom should have aroused suspicion. He added that

Sepulveda was complacent and her approach to protecting

the welfare of the children at her school conveyed that

complacency to the teachers she was responsible for

supervising. According to him, those teachers "were

certainly incapable of recognizing the signs that they

should have recognized when something was not right

regarding molestation of students." App. 250-1. Kent

concluded that Sepulveda's attitude evidenced deliberate

indifference as exemplified by her response to the Mercado

complaint. Id. He testified:

throughout [Sepulveda's] tenure, beginning with the

Mercado incident, she basically conducted no

investigations of any type to determine if there was a

legitimate complaint involved. This becomes very, very

important because one could always say, I've turned it

over to the police or I turned it over to Children and

Youth Services. but the police standard is much

higher. . . . School Districts are required to conduct an

investigation to determine whether or not a person is

fit to be a teacher. None of that has ever gone on under

her leadership in the building

App. 251-2. Later in his testimony, Dr. Kent told the jury

that Dr. Sepulveda's attitude "really served to create a

hostile environment in the building where young boys. . .

5

became prey of a teacher who was bent on molesting them

and this was happening right under the nose of the

principal." App. 257.

Plaintiff also introduced two "supervisory conference"

memoranda over defense objection. The first memorandum,

dated 1969, was a two-page evaluation of Brown that had

been prepared years before he came to Robert's school. The

memorandum summarized the conference Brown

apparently had with a supervisor back in 1969. It stated in

part: "[w]e also discussed his preparation for graduate

school-- children in his class-- and his involvement with

children after school hours." Warren v. Reading School

Dist., 82 F. Supp. 2d 395, 398 (E.D. Pa. 2000). The

memorandum was in Brown's personnel file in the School

District Administration Building, but there was no evidence

that Sepulveda, or anyone else at Robert's school ever saw

it or knew it existed.

The second memorandum was a supervisory conference

memorandum that Sepulveda prepared in 1995. It stated in

part: "it has been brought to my attention that the games

you play with the students in the classroom involve

physical contact. For the best interest of all concerned, this

situation must `stop'." Id. Sepulveda explained that this

second memorandum referred to a parent's complaint that

inappropriate "horseplay" was occurring in Brown's

classroom during recess and not inappropriate sexual or

physical contact.

At the close of plaintiff 's case, the school district moved

for judgment as a matter of law under Fed. R. Civ. P. 50.

The school district argued that plaintiff had not introduced

sufficient evidence to allow a reasonable jury to conclude

that an official of the Reading School District had actual

knowledge of, and was deliberately indifferent to, Brown's

conduct as was required under the standard recently

articulated in Gebser v. Lago Vista Independent School

District, 524 U.S. 274 (1998). Sepulveda also moved for

judgment as a matter of law arguing that the evidence was

insufficient to impose S 1983 liability on her under

Stoneking v. Bradford Area School District, 882 F.2d 720 (3d

Cir. 1989). The court denied both motions, and the jury

returned a verdict against the school district under Title IX

6

in the amount of $400,000. The jury's interrogatories

established that the jury found that a school district official

with authority to institute corrective measures had actual

notice of Brown's conduct and acted with deliberate

indifference. However, the jury also found for principal

Sepulveda and concluded that she was not individually

liable under S 1983.

The school district filed timely motions for judgment as a

matter or law, or in the alternative, for a new trial, under

Fed. R. Civ. P. 50(b) and 59. The district court denied both

motions, entered judgment against the school district, and

awarded plaintiff $104,000 in attorney's fees under 42

U.S.C. S 1988. This appeal followed.

The school district raises several claims of error.

However, we will limit our discussion to the district's claim

that the court erred in not instructing the jury that Vecchio

could not be considered "an appropriate person" under Title

IX. Inasmuch as we conclude that the school district is

entitled to a new trial on that basis, the remaining claims

of error are moot.2

II. JURISDICTION AND STANDARD OF REVIEW

The district court had subject matter jurisdiction over

plaintiff 's federal claims pursuant to 28 U.S.C.S 1331. We

have jurisdiction under 28 U.S.C. S 1291. Our review of the

district court's denial of the Rule 50(b) motion is plenary.

_________________________________________________________________

2. We do, however, note our concern with admitting the 1969 conference

memorandum as this may become an issue at any subsequent retrial.

The district court concluded that the memorandum"was not unfairly

prejudicial," and allowed it into evidence. Warren 82 F. Supp. 2d at 401.

We do not disagree with the court's assessment of the note's minimal

potential for prejudice. However, its contents are so nebulous that only

the rankest kind of speculation can connect it to anything relevant to

Title IX. See P.H. v. School District of Kansas City, 265 F.3d 653, 660

(8th Cir. 2001) (an "isolated complaint that was nearly 20 years old at

the time of [the] abusive conduct . . ." was not "itself a sufficient

basis

on which to infer that the [defendant school district] had notice of the

improper sexual contact . . ."). Furthermore, the memorandum is

unsigned, the author uncertain, and the record is silent as to who

attended the conference from which it allegedly emanated.

7

Accordingly, we will reverse "only if, viewing the evidence in

the light most favorable to the nonmovant and giving it the

advantage of every fair and reasonable inference, there is

insufficient evidence from which a jury reasonably could

find liability." Fultz v. Dunn, 165 F.3d 215, 218 (3d Cir.

1998). We review the district court's order denying a new

trial for abuse of discretion, unless the court's decision is

based upon the application of a legal precept. If that is the

case, our review is plenary. Pryer v. C.O. 3 Slavic, 251 F.3d

448, 453 (3d Cir. 2001).

III. DISCUSSION

A. LIABILITY UNDER TITLE IX, 20 U.S.C. S 1681 et

seq.

Title IX of the Education Amendments of 1972 provides

in pertinent part:

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. S 1681(a). Although Congress only provided for

administrative enforcement of Title IX's prohibition against

discrimination, the Supreme Court held in Cannon v.

University of Chicago, 441 U.S. 677 (1979), that Title IX is

also enforceable through an implied private right of action.

Thereafter, in Franklin v. Gwinnett County Public Schools,

503 U.S. 60 (1992), the Court held that monetary damages

can be recovered in a private action under Title IX.

However, the Court did not define the parameters of that

liability until it decided Gebser, supra.

Gebser concerned an implied private cause of action for

damages resulting from sexual harassment of a student by

a teacher. Waldrop, who was the teacher, began making

"sexually suggestive comments to students," and eventually

initiated sexual contact with the minor plaintiff while

visiting her home "ostensibly to give her a book" while her

parents were away. Id. at 277-8. Waldrop's advances

8

escalated to a sexual relationship which he maintained with

the plaintiff student who was assigned to his classroom.

Gebser never reported Waldrop's conduct. Parents of two

other students did complain to the high school principal.

However, those parents only knew of Waldrop's improper

class room comments, and that was the substance of their

complaints to the school principal. The principal responded

by arranging a meeting between himself, the parents who

had complained, and Waldrop. During that meeting,

Waldrop stated that he did not believe any of his remarks

were offensive, but he nevertheless apologized for them. The

principal responded by cautioning Waldrop about his class

comments, and later informing the school's guidance

counselor about the meeting. However, the principal did not

inform the district superintendent (who was also the

district's Title IX coordinator) about the meeting.

Waldrop's relationship with Gebser was discovered a

couple of months later when police encountered them

having sexual intercourse. They arrested Waldrop, and the

school district immediately terminated him. Thereafter,

Gebser's parents brought an action against the school

district that included a claim under Title IX, and 42 U.S.C.

S 1983. The district court rejected the Title IX claim

because it concluded that Title IX did not support liability

in the absence of a policy, custom or a course of conduct

that amounted to a custom or policy allowing

discrimination or harassment. The court reasoned that

plaintiff had to show actual knowledge of discrimination,

and a failure to respond in good faith to establish such a

policy. 524 U.S. at 279. Inasmuch as the evidence

established that the school district only knew of parents'

complaints about Waldrop's improper comments, the court

held that the evidence was not sufficient to establish actual

or constructive knowledge of a sexual relationship with

Gebser. Accordingly, the court awarded judgment in favor

of the defendant school district on the Title IX claim, and

the Court of Appeals for the Fifth Circuit affirmed. Doe v.

Lago Vista Independent School Dist., 106 F.3d 1223 (1997).

On appeal, the Supreme Court was asked to decide

"when a school district may be held liable in damages in an

implied right of action under Title IX." 524 U.S. at 277. The

9

Court rejected employer liability based upon principles of

agency that apply in suits for sexual harassment under

Title VII. The Court reasoned that "it would frustrate the

purpose of Title IX to permit monetary damages for a

teacher's sexual harassment of a student based on

principles of respondent superior or constructive notice."

Gebser, 524 U.S. at 285, citing Franklin, 503 U.S. at 71.

Instead, the Court concluded that Title IX's "express

remedial scheme is predicated upon notice to an

appropriate person and an opportunity to rectify violation."

Gebser, 524 U.S. at 290 (internal quotation marks omitted).

The Court explained that liability in damages could not

attach under Title IX unless an "appropriate person" had

actual notice of the conduct that liability is premised upon,

and explained that:

[a]n "appropriate person" under [Title IX] is, at a

minimum, an official of the recipient entity with

authority to take corrective action to end the

discrimination. Consequently, in cases like this one

that do not involve official policy of the recipient entity,

we hold that a damages remedy will not lie under Title

IX unless an official who at a minimum has authority

to address the alleged discrimination and to institute

corrective measures on the recipient's behalf has actual

knowledge of discrimination in the recipient's programs

and fails adequately to respond.

Gebser, 524 U.S. at 290.

Although the Court did not explicitly state whether a

school principal can be an "official" or "appropriate person"

under Title IX, we think it is obvious from the Court's

discussion that knowledge of a principal can be sufficient in

an appropriate case. The only official with information

about the teacher's misconduct in Gebser was the

principal. The Court examined his actual knowledge and

concluded that it was not sufficient for liability under Title

IX. Gebser, 524 U.S. at 291-92. The Court noted that

[t]he only official alleged to have had information about

Waldrop's misconduct is the high school principal.

That information, however, consisted of a complaint

from parents of other students charging only that

10

Waldrop had made inappropriate comments during

class, which was plainly insufficient to alert the

principal to the possibility that Waldrop was involved

in a sexual relationship with a student.

524 U.S. at 291. The Court's analysis suggested the

possibility that the principal could be "an appropriate

person" under Title IX if plaintiff could establish the

principal actually knew about the conduct and was

deliberately indifferent towards it.

The Court's analysis in Gebser rested upon the

supposition that a principal is usually high enough up the

bureaucratic ladder to justify basing Title IX liability on his

or her actual knowledge and deliberate indifference. If a

principal is not an "appropriate person" for purposes of

Title IX, a substantial portion of the Supreme Court's

analysis in Gebser was nothing more than a meaningless

discussion. See also Davis Monroe County Bd of Educ., 526

U.S. 629 (1999) (holding that principal's actual knowledge

and failure to respond would support liability under Title

IX); and Murrell v. School Dist. No. 1, Denver, Colo, 186 F.3d

1238, 1247 (10th Cir. 1999) ("We find little room to doubt

that the highest-ranking administrator [at the school]

exercised substantial control of Mr. Doe and the school

environment during school hours, and so her knowledge

may be charged to the School District.").

Moreover, the practical result of holding that a principal

is not an "appropriate person" would require a plaintiff to

prove that members of the school's governing body, perhaps

even a voting majority of those members, knew of the

improper conduct. That would undermine the private cause

of action under Title IX that the Court found in Cannon,

and eliminate the protection Congress intended for

students in schools receiving Title IX funds.

In concluding that the private cause of action under Title

IX was not identical to the cause of action under Title VII,

the Court in Gebser stressed the different purposes of those

two statutes. The explicit cause of action in Title VII is

intended to punish acts of discrimination, whereas the

cause of action in Title IX is intended as protection for the

student. See Gebser, 524 U.S. at 287 ("Title IX focuses

11

more on `protecting' individuals from discriminatory

practices carried out by recipients of federal funds."). The

Court was therefore concerned that an implied right of

private action not interfere with the opportunities for

voluntary compliance built into the statutory scheme of

Title IX, and administrative remedies that Congress

included in the statutory scheme. Holding a school district

responsible for actions of a principal fixes responsibility at

sufficiently high level to afford the recipient of Title IX funds

an opportunity to respond to claims of discrimination

before funds are jeopardized by a teacher's conduct. It also

affords an opportunity for voluntary compliance with the

contractual undertakings that are part of Title IX funding.

Gebser, 524 U.S. at 288. ("Presumably, a central purpose of

requiring notice of the violation `to the appropriate person'

and an opportunity for voluntary compliance before

administrative enforcement proceedings can commence is

to avoid diverting education funding from beneficial uses

where a recipient was unaware of discrimination in its

programs and is willing to institute corrective measures.").

The Supreme Court in Gebser recognized the practical

problems confronting plaintiffs attempting to establish a

valid claim under Title IX, as well as the increasing

difficulty of providing educational benefits in the face of

growing claims of sexual harassment. The Court noted:

The number of reported cases involving sexual

harassment of students in schools confirms that

harassment unfortunately is an all too common aspect

of the educational experience. No one questions that a

student suffers extraordinary harm when subjected to

sexual harassment and abuse by a teacher, and that

the teacher's conduct is reprehensible and undermines

the basic purposes of the educational system. The

issue in this case, however, is whether the independent

misconduct of a teacher is attributable to the school

district that employs him under a specific federal

statute designed primarily to prevent recipients of

federal financial assistance from using the funds in a

discriminatory manner. . . . [W]e will not hold a school

district liable in damages under Title IX for a teacher's

sexual harassment of a student absent actual notice

and deliberate 293 indifference. . . .

12

524 U.S. at 292.

The school district argues that since Gebser did not

specifically "identify by job title those officials whose actual

knowledge of a teacher's misconduct may be imputed to the

school district," there remains an incomplete and vague

standard as to who may qualify as an "appropriate person,"

and the question remains subject to interpretation.

Appellants' Br. at 26. We disagree. For the reasons we have

just discussed, we think that a school principal who is

entrusted with the responsibility and authority normally

associated with that position will ordinarily be"an

appropriate person" under Title IX.3

Having reached that conclusion, however, we must still

determine if the evidence here was sufficient to allow a

reasonable jury to conclude that "an appropriate person"

had actual knowledge of Brown's abuse of Robert. If we

conclude that it was, we must then determine if the

evidence allowed the jury to conclude that the "appropriate

person" exhibited the deliberate indifference necessary to

liability under Title IX.

B. PLAINTIFF ESTABLISHED ACTUAL KNOWLEDGE

OF "AN APPROPRIATE PERSON."

Plaintiff attempted to prove that both Sepulveda and

Vecchio knew of Brown's conduct and the district court

accepted the argument that each was "an appropriate

person" under Title IX. On appeal, the school district

_________________________________________________________________

3. The court in Miller v. Kentosh 1998 WL 355520 (E.D. Pa.) referred to

the school principal as an appropriate supervisory official for the

purposes of Title IX liability. Moreover, in Massey v. Akron City Board of

Education, 82 F.Supp. 2d 735, 744 (N.D. Ohio 2000), the district court

found that the school principal, who was the supervisor of a teacher who

allegedly sexually harassed multiple students, was an official who had

the authority to institute corrective measures against the teacher.

Similarly, in Canty v. Old Rochester Regional School District, 66

F.Supp.2d 114 (D. Mass. 1999), summary judgment was dismissed in a

case where the building principal, deemed an appropriate person under

Gebser, failed to remedy the misconduct when he admittedly had

knowledge of it.

13

argues that neither is "an appropriate person," and plaintiff

persists in arguing that they both are.

The district court concluded that Sepulveda was"an

appropriate person" and that she transferred her authority

to Vecchio. The court also concluded that even if Vecchio

was not "an appropriate person," plaintiff is not entitled to

a new trial because the weight of the evidence established

liability based only upon Sepulveda's authority. Warren v.

Reading School Dist., 82 F. Supp. 2d 395, 401 (E.D. Pa.

2000). Although we agree that the evidence was sufficient

to allow a reasonable jury to conclude that Sepulveda was

"an appropriate person" under Title IX, we do not agree that

Vecchio was, or that Sepulveda somehow transferred her

authority to Vecchio.

Dr. Sepulveda testified that she had a doctorate degree in

education administration and supervision. App. 414. She

also testified that, as principal, she was in charge of every

aspect of the daily operations of the Tenth and Green

Elementary School, including supervision and discipline of

the teachers at the school. Id. at 414-17. She was

responsible for the health, safety, and welfare of the

students at her school. Id. She testified that she enacted,

oversaw, and administered numerous school programs

including the latch-key program, migrant program,

detention program, homework program, and dismissal

program. Id. She had also been responsible for planning

agendas for faculty-wide meetings during which she

instructed teachers on various district policies including

sexual harassment. Her duties included administrative

responsibility for educating teachers about sexual

harassment policies. Id. at 426-28, 442. Her responsibilities

for supervising teachers obviously included the kind of

reprimand contained in the supervisory conference note

mentioned above wherein she rebuked Harold Brown for his

activities with children. As noted above, that note stated in

part: "it has been brought to my attention that games that

you play with students in the classroom involve physical

contact. For the best interest of all concerned, this situation

must `stop.' " App. 249 (emphasis added).

Moreover, Dr. Kent's testimony stressed the importance

of the wording of that note. He believed it was very

14

uncommon for a principal to write such a pointed note and

place it in a personnel file. Kent opined that it meant that

Sepulveda was trying to "send a very strong message. They

did not want this behavior to continue." App. 250. The date

of this note, October 24, 1995, is after Brown's last contact

with Robert, and only 10 days before Brown was

suspended. Therefore, it did not conclusively establish

Sepulveda's knowledge of Brown's conduct. Moreover,

Sepulveda explained that the note was written in response

to parental complaints about "horseplay" in Brown's room

during recess, and not about the "shoulders" activity, or

anything like it. See Warren v. Reading School Dist., 82

F.Supp. 2d at 398. Assuming arguendo that the jury

accepted that explanation, the note is still highly probative

of Sepulveda's authority in the school.4 It certainly

corroborated the plaintiff 's contention that she was "an

appropriate person" with "authority to institute corrective

measures on the district's behalf." Gebser , 526 U.S. at 277.

The district court held that Sepulveda had supervisory

authority "to institute corrective measures on the district's

behalf," within the meaning of Gebser. 82 F. Supp. 2d at

400. Although Sepulveda, might not have authority to

terminate or even suspend a teacher under Pennsylvania

law, she acknowledges that she had authority to investigate

a teacher's misconduct. The authority to supervise a

teacher and to investigate a complaint of misconduct

implies the authority to initiate corrective measures such

as reporting her findings to her superior or to the

appropriate school board official at the very least. We

therefore agree with the district court that Dr. Sepulveda is

an official with authority to institute corrective measures on

the School District's behalf. Moreover, the October 24

memorandum is certainly consistent with the kind of

authority necessary to finding that she was "an appropriate

person" under Gebser.

We also agree that the evidence would support a finding

that Sepulveda knew of Brown's conduct and was

deliberately indifferent to it. Mercado's testimony alone

_________________________________________________________________

4. Although this assumption is contrary to our standard of review, it

illustrates the force of plaintiff 's evidence.

15

would support a jury finding that Sepulveda had been told

that a teacher in her elementary school was taking a

student to that teacher's home, and paying the student to

engage in physical activity consisting of "lifting up and

down." She responded by telling Mercado that she was "too

busy" to listen to this parent's complaint, or act upon it.

She referred Mercado to Vecchio, a guidance counselor. The

jury could find deliberate indifference from that testimony

alone, even absent Kent's expert assessment of it. 5

However, as noted above, plaintiff also argues that the

evidence would allow the jury to conclude that Vecchio was

"an appropriate person" as well. Vecchio testified that his

job involved dealing with children who have behavioral as

well as academic problems, and referrals to networks of

agencies that provide assistance to children and families.

App. 401. He also handled referrals for abuse, and

assumed the role of principal when Sepulveda was not in

the building. However, when Mercado visited Tenth and

Green Elementary School to complain about Brown's

conduct Sepulveda was present. Nothing suggests that

Vecchio was acting as principal then except for the

argument that arises from Sepulveda referring Mercado to

Vecchio because she was "too busy" to listen. That is not

sufficient on this record to visit liability upon the school

district. Although a principal can be "an appropriate

person," there is clearly insufficient evidence on this record

to allow a jury to conclude that Vecchio was cloaked with

sufficient authority to be a "responsible person" during any

time relevant here.

The case was submitted to the jury under a theory that

allowed it to find that either Sepulveda or Vecchio was "an

appropriate person." Moreover, during jury deliberations,

the jury asked whether the guidance counselor was"an

appropriate person." The court rejected the school district's

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5. We realize that Mercado testified that Sepulveda was in a hurry and

appeared distracted when he spoke to her. However, that is not

inconsistent with deliberate indifference. Rather, testimony that a school

principal was too busy to respond to a parent's report that a teacher was

taking a student to that teacher's home and paying him for some kind

of physical activity involving "lifting up and down" could only have

confirmed Sepulveda's indifference.

16

request that the jury be instructed that Vecchio was not

"an appropriate person" as a matter of law. Rather, the

court concluded that Vecchio's status under Gebser was a

fact question, and instructed the jury that it should make

its own determination based upon the evidence. App. 616-

618. The school district argues that was error that entitles

it to a new trial. We agree.

The court's response to the jury allowed the jury to

return a verdict for plaintiff based upon Vecchio's

knowledge and deliberate indifference rather than

Sepulveda's. However, the district court's own opinion

strongly suggests that the court did not believe that the

plaintiff 's Title IX claim could be based upon Vecchio's

knowledge and indifference. The court's entire discussion of

the jury's concern with Vecchio being "an appropriate

person" is as follows:

Defendant next argues that the Court erred when it

declined to instruct the jury that Mr. Vecchio, a

guidance counselor, was not an "official" of the Reading

School District within the meaning of Gebser, The

Court does not agree with Defendant that it is clear

that Mr. Vecchio was not an appropriate official under

Gebser when the principal, Dr. Sepulveda, had

transferred her authority to Mr. Vecchio. But more

importantly, even if Mr. Vecchio were not an

appropriate official under Gebser, for the reasons

discussed in Section One (I) above the jury's verdict

would not be "contrary to the great weight of the

evidence," nor would the jury's verdict "produce a

result inconsistent with substantial justice." Therefore,

Defendant's request for a new trial on this basis is

denied.

82 F. Supp. 2d at 401 (internal citations omitted). 6 The

court is careful to note that the school district could be

liable based upon Vecchio's knowledge "when the principal

. . . had transferred her authority to" him. Besides, such

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6. Section one of the opinion, which the court refers to, is the portion

of

the court's analysis where the court convincingly discusses why

Sepulveda's authority would support the school district's liability under

Title IX.

17

authority could not have been transferred to Vecchio

without school district approval, and there is none here.

However, as we have already noted, this record does not

support a finding that such authority was transferred

(insofar as Title IX's "appropriate person" limitation is

concerned) at any time relevant to this complaint.

Sepulveda merely referred a complaint, she did not delegate

authority or responsibility. Accordingly, we conclude that

the district court erred in failing to instruct the jury that

Vecchio could not be "an appropriate person" on this

record.

Inasmuch as the jury's verdict slip does not allow us to

determine if the verdict was based upon Vecchio's actual

knowledge and deliberate indifference, or Sepulveda's

actual knowledge and deliberate indifference, we must

remand for a new trial on plaintiff 's Title IX claim as the

school district has requested in the alternative. 7

III. CONCLUSION

For the above reasons, we will affirm the district court's

denial of the defendants' motion for judgment as a matter

of law, but we will reverse the district court's denial of the

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7. The school district argues that the jury's verdict for Sepulveda on the

S 1983 claim establishes that the jury found that Vecchio, and not

Sepulveda, was deliberately indifferent under Title IX. Appellant's Br. at

38. Accordingly, the school district argues it is entitled to judgment as

a matter of law on the Title IX claim. We do not think it appropriate to

grant judgment as a matter of law, however, because the evidence

supports a jury verdict on that claim if the verdict is based upon

Sepulveda's authority, knowledge, and deliberate indifference. The school

district requests a new trial on the Title IX claim in the alternative,

and

that relief is appropriate.

As noted above, plaintiff argues only that both Vecchio and Sepulveda

were "appropriate person[s]" for purposes of Title IX. He does not rely

upon a possibly inconsistent verdict to argue that he should receive a

new trial on the S 1983 if we order a new trial under Title IX.

Accordingly, we need not discuss whether the apparent inconsistency in

the verdicts could justify ordering a new trial on both claims as is

sometimes proper under our the analysis in Mosley v. Wilson, 102 F.3d

85, 89-91 (3d Cir. 1996).

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defendants' motion for a new trial and remand this matter

to the district court for further proceedings consistent with

this opinion.8

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

_________________________________________________________________

8. In light of our holding, we will instruct the district court to vacate

its

award of attorney's fees for plaintiff. See Baumgartner v. Harrisburg

Housing Authority, 21 F. 3d 541, 544 (3rd Cir. 1994) (In order to receive

an award of attorney's fees under 42 U.S.C. S 1988 "a plaintiff must

receive at least some relief on the merits of his[/her] claim before

he[/she] can be said to prevail.").

19