M. S. v. Susquehanna Twp Sch Dist

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 19-2173

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M.S., a minor, by and through her mother Paris Hall;

PARIS HALL, individually,

Appellants

v.

SUSQUEHANNA TOWNSHIP SCHOOL DISTRICT;

SHAWN A. SHARKEY

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On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil No. 1-13-cv-02718)

District Judge: Honorable Yvette Kane

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Submitted Under Third Circuit L.A.R. 34.1(a):

April 23, 2020

Before: PORTER, RENDELL, and FISHER

Circuit Judges.

(Filed: August 5, 2020)

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Dennis E. Boyle

Whiteford Taylor & Preston

1800 M Street, N.W.

Suite 450N

Washington, D.C. 20036

Counsel for Appellant

Carl P. Beard

Elizabeth A. Benjamin

Beard Legal Group

3366 Lynnwood Drive

P.O. Box 1311

Altoona, PA 16603

Counsel for Appellees

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OPINION OF THE COURT

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PORTER, Circuit Judge.

Shawn A. Sharkey, an assistant principal at

Susquehanna Township High School, had a sexual relationship

with M.S., a sixteen-year-old female student. M.S. sued the

School District alleging, in part, that it violated Title IX by

responding inadequately to Sharkey’s sexual misconduct. The

District Court granted summary judgment for the School

District. We will affirm.

2

I

A

Shawn A. Sharkey began working as a special educator

and assistant principal at Susquehanna Township High School

in January 2013. He soon met M.S., a sixteen-year-old female

student, and they began a sexual relationship that lasted until

the end of March 2013.

Weeks later, students began spreading rumors that M.S.

and Sharkey had carried on a sexual relationship. Because of

the commotion, the School District launched an investigation

into the rumors. The School District’s investigation was

conducted by another assistant principal, the principal, an

assistant superintendent, and the superintendent. It included

numerous interviews with M.S., Sharkey, other students, a

review of Sharkey’s telephone records, and an examination of

texts, emails, and photos on M.S.’s telephone and on Sharkey’s

district-issued telephone. M.S. and Sharkey steadfastly denied

the rumors.

As a result of the investigation, the School District knew

that: (1) some students had spread rumors about M.S. and

Sharkey; (2) M.S. had a crush on Sharkey; (3) no student had

seen pictures or texts substantiating the rumors; (4) M.S.’s and

Sharkey’s phones lacked any evidence of wrongdoing; and (5)

M.S. and Sharkey denied the rumors. At this point, after

conferring with the School District’s attorney, the

superintendent ended the investigation.

At the beginning of the next school year, the rumors

about M.S. and Sharkey resurfaced. This time, the School

District contacted the Susquehanna Township police and

3

placed Sharkey on administrative leave. Police detectives met

with M.S., who again denied having a sexual relationship with

Sharkey. The police informed her that they planned to get a

search warrant for her phone. The next day, September 19,

2013, M.S. and her parents met with the police at the local

station. There, for the first time, M.S. admitted to and provided

details about her relationship with Sharkey.

On September 20, 2013, Sharkey was criminally

charged. On September 27, 2013, the School District informed

Sharkey that it intended to terminate his employment. Three

days later, the School District received a resignation letter from

Sharkey, which the School District accepted at its next board

meeting. On November 5, 2013, M.S. filed her complaint

against the School District.

4

B

M.S.’s complaint named the School District and several

School District officials as defendants.1 Her complaint alleged

a hostile educational environment because of Sharkey’s sexual

harassment and students’ behavior2 in violation of Title IX,

violations of the Fourteenth Amendment, and state-law claims.

The District Court dismissed all but M.S.’s Title IX hostile-

educational-environment claim against the School District.

The School District eventually moved for summary

judgment on M.S.’s Title IX claim. The Magistrate Judge

issued a Report and Recommendation suggesting that the

District Court grant summary judgment in the School District’s

favor. M.S. did not object to the Report and Recommendation.

The District Court adopted the Report and Recommendation

and entered summary judgment for the School District.

1

Shawn Sharkey was also named as a defendant, but he is not

a party to this appeal. The District Court entered default

judgment against Sharkey and ordered him to pay $700,000 in

damages. See Judgment, M.S. v. Susquehanna Twp. Sch. Dist.,

No. 1:13-cv-02718-YK (M.D. Pa. Apr. 30, 2019), ECF No.

121.

2

In her reply brief on appeal, M.S. first argued that the School

District’s deliberate indifference subjected her to further

harassment by other students. She forfeited the argument by

failing to raise it in her opening brief on appeal. See United

States v. Pelullo, 399 F.3d 197, 222 (3d Cir. 2005). But, even

if the issue were preserved and even if the students’ behavior

was Title IX harassment, the complained-of conduct occurred

after M.S. stopped attending Susquehanna Township High

School.

5

M.S. filed a motion for reconsideration asking that the

District Court grant her leave to file objections to the Report

and Recommendation and reconsider its summary judgment

order. The District Court denied M.S.’s request to file untimely

objections because “the arguments presented by [M.S. in her

proposed objections] are unavailing and would not have altered

the decision reached by the Court.” App. 40. The District Court

then denied M.S.’s motion for reconsideration.

M.S. timely appealed.3 Thus, we must decide whether

the District Court properly granted summary judgment to the

School District on M.S.’s Title IX hostile-educational-

environment claim.

3

In her amended notice of appeal, M.S. appealed: (1) the

District Court’s two orders that dismissed all the claims against

the School District officials and all the claims—except for the

Title IX hostile-educational-environment claim—against the

School District; (2) the District Court’s order granting

summary judgment for the School District on her Title IX

claim; and (3) the District Court’s order denying her motion

for reconsideration. See JA 1. Yet, in her opening brief, M.S.

states that the order she appeals from is only the “Order

granting Summary Judgment” to the School District on the

Title IX hostile-educational-environment claim. Appellants’

Br. 1. Accordingly, she forfeited her challenges to the other

orders. See United States v. Peppers, 899 F.3d 211, 235 (3d

Cir. 2018) (citing Barna v. Bd. of Sch. Dirs. of Panther Valley

Sch. Dist., 877 F.3d 136, 147 (3d Cir. 2017) (noting that a party

forfeited an argument because he neither briefed nor argued it

on appeal)).

6

II

The District Court had subject-matter jurisdiction under

28 U.S.C. § 1331. We have appellate jurisdiction under 28

U.S.C. § 1291.

The parties dispute whether we apply de novo or plain-

error review. Ordinarily, when a party fails to object to a report

and recommendation, “we review the District Court’s grant of

summary judgment for plain error.” Brightwell v. Lehman, 637

F.3d 187, 193 (3d Cir. 2011) (citation omitted). But, in some

cases, we will apply de novo review if the District Court

“elect[ed] to exercise its power to review a magistrate’s report

de novo.” Orie v. Dist. Att’y Allegheny Cnty., 946 F.3d 187,

193 (3d Cir. 2019) (citation and alteration omitted). Regardless

of whether we conduct de novo or plain-error review, we apply

the summary judgment standard.4

Summary judgment is appropriate if “the movant shows

that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a). We view the evidence in the light most favorable to

the non-moving party. See Melrose, Inc. v. City of Pittsburgh,

613 F.3d 380, 387 (3d Cir. 2010). A fact is material if—taken

4

Before we decide whether to exercise our discretion, plain-

error review requires that “we find (1) an error, (2) that is

plain—i.e., clear and obvious—and (3) the error affected the

defendant’s substantial rights.” Forrest v. Parry, 930 F.3d 93,

113 (3d Cir. 2019) (citation omitted). To decide whether the

District Court’s grant of summary judgment was “error,” we

apply the summary judgment standard. See, e.g., Brightwell v.

Lehman, 637 F.3d 187, 193–94 (3d Cir. 2011).

7

as true—it would affect the outcome of the case under

governing law. Anderson v. Liberty Lobby, 477 U.S. 242, 248

(1986). And a factual dispute is genuine “if the evidence is such

that a reasonable jury could return a verdict for the nonmoving

party.” Id.

Because the School District is entitled to judgment as a

matter of law, M.S.’s appeal would not survive either de novo

or plain-error review. We therefore assume without deciding

that de novo review applies. For the following reasons, we will

affirm the District Court’s order granting summary judgment.

III

Title IX of the Education Amendments of 1972 requires

that “[n]o person . . . shall, on the basis of sex, . . . be subjected

to discrimination under any education program or activity

receiving [f]ederal financial assistance.” 20 U.S.C. § 1681(a).

Title IX is enforceable “through an implied private right of

action.” Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274,

281 (1998) (citing Cannon v. Univ. of Chicago, 441 U.S. 677

(1979)).

Sexual harassment is a form of Title IX discrimination.

See Davis ex rel. Lashonda D. v. Monroe Cnty. Bd. of Educ.,

526 U.S. 629, 649–50 (1999) (citations omitted). An

administrator’s sexual relationship with a high school student

is a form of sexual harassment. See generally Gebser, 524 U.S.

274. And “a school district can be held liable in damages in

cases involving a teacher’s sexual harassment of a student[.]”

Id. at 281 (citing Franklin v. Gwinnett Cnty. Pub. Schs., 503

U.S. 60 (1992)). For a school district to be liable under Title

IX’s private right of action, an appropriate person must have

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actual knowledge of sex-based harassment and must respond

with deliberate indifference. See id. at 290.

Thus, we must first determine whether an appropriate

person had actual knowledge of Sharkey’s sex-based

harassment of M.S.5 An appropriate person is “an official who

at a minimum has authority to address the alleged

discrimination and to institute corrective measures on the

recipient’s behalf.” Id. The actual knowledge requirement

forecloses damages liability based “solely on principles of

vicarious liability or constructive notice” and avoids the “risk

that the recipient would be liable in damages not for its own

official decision but instead for its employees’ independent

actions.” Id. at 288, 290–91.

A

We are asked to decide whether a perpetrator of sex-

based harassment who has authority to address Title IX

violations and has knowledge of his own sex-based

harassment, like Sharkey,6 satisfies the appropriate-person

standard. This question is one of first impression for this Court.

5

No party disputes that the School District receives federal

funding.

6

Whether an assistant principal has the responsibility and

authority to qualify as an appropriate person is a question of

fact. See Bostic v. Smyrna Sch. Dist., 418 F.3d 355, 362 (3d

Cir. 2005). Yet here, it is undisputed that, in the event of

complaints about harassment, an assistant principal like

Sharkey had the authority to implement corrective measures.

See App. 560–61 (deposition of assistant principal, Kristi

Kauffman Prime).

9

We hold that a perpetrator of sexual harassment who has

authority to remedy Title IX violations is not an appropriate

person for assessing a school district’s Title IX liability in a

private right of action.7

M.S. argues that the Court’s holding in Gebser v. Lago

Vista Independent School District requires that, “[w]hen an

‘appropriate person’ has knowledge of the Title IX violation,

the analysis ends.” Appellants’ Br. 19 (citation omitted). But

Gebser also noted that when “a school district’s liability rests

on actual notice principles, . . . the knowledge of the

wrongdoer himself is not pertinent to the analysis.” 524 U.S. at

291 (citing Restatement (Second) of Agency § 280 (Am. Law.

Inst. 1958)).

M.S. believes that Gebser’s reference to § 280 of the

Restatement is not applicable to Sharkey—or anyone who

would otherwise be an appropriate person who perpetrates

Title IX discrimination. See Appellants’ Br. 20. She attempts

to limit the Court’s reference by suggesting that § 280

“concerns knowledge of [a] principal through agents and

establishes that an agent’s knowledge of his or her own wrong

does not impute knowledge to a [principal].” Id. She concludes

that “[w]hen an appropriate person himself . . . causes the Title

IX violation, knowledge by another appropriate person is not

required.” Id. (citations omitted). In other words, M.S. believes

that Gebser’s statement that the wrongdoer’s knowledge of his

7

We join the only other circuit to answer the question. See

Salazar v. S. San Antonio Indep. Sch. Dist., 953 F.3d 273 (5th

Cir. 2017).

10

own misdeeds is irrelevant under actual-notice principles is

dicta.8

M.S.’s perspective has some intuitive appeal. Gebser

did not clearly create an exception to damages liability when

the perpetrator would otherwise be an appropriate person. This

seems especially true because the perpetrator in Gebser was a

teacher and not an administrator with authority to remedy Title

IX violations. See Gebser, 524 U.S. at 277–78.

But a closer reading of Gebser suggests that the Court’s

reference to § 280 was essential to its holding. In dissent,

Justice Stevens suggested that the Gebser majority misapplied

the appropriate person standard because “the teacher who

abused his student had the authority to take corrective

measures when he had actual knowledge of harassment.”

Salazar v. S. San Antonio Indep. Sch. Dist., 953 F.3d 273, 278

(5th Cir. 2017); see Gebser, 524 U.S. at 299 n.8 (Stevens, J.,

dissenting) (noting that “[t]he fact that [the wrongdoer] did not

8

Pointing to the appropriate person standard in Title IX

retaliation cases, M.S. also argues that “[i]t would be illogical

to” find that retaliation by an assistant principal is actionable

but abuse by an assistant principal who is an appropriate person

is not. Appellants’ Br. 20. But, in a Title IX retaliation case, an

appropriate person’s knowledge is not at issue because

retaliation presupposes knowledge of Title IX complaints that

motivates the adverse action. See, e.g., Doe v. Mercy Catholic

Med. Ctr., 850 F.3d 545, 564 (3d Cir. 2017) (“[T]o establish a

prima facie retaliation case under Title IX, [a plaintiff] must

prove she engaged in activity protected by Title IX, she

suffered an adverse action, and there was a causal connection

between the two.” (citation omitted)).

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prevent his own harassment of [the student] is the consequence

of his lack of will, not his lack of authority” (emphasis added)).

Justice Stevens’s suggestion that the teacher in Gebser had the

authority to address sex discrimination and take corrective

measures prompted the Gebser majority to respond that the

knowledge of the perpetrator—even one that has authority to

correct wrongdoing—“is not pertinent to the analysis.” Id. at

291 (citation omitted).

A hypothetical introduced by the Supreme Court in a

case about Title IX retaliation shows that Gebser’s

appropriate-person standard excludes perpetrators who had

authority to take corrective measures. In Jackson v.

Birmingham Board of Education, the Court noted that a school

district “would likely be liable for a Title IX violation” if “a

[school] principal sexually harasses a student, and a teacher

complains to the school board but the school board is

indifferent[.]” 544 U.S. 167, 180 (2005) (emphasis added). If a

school principal’s knowledge of his own wrongdoing is

sufficient, as M.S. contends, then the Court’s hypothetical

would not have needed to include a teacher informing the

school board of the wrongdoing.

If anything, the hypothetical includes the report to the

school board precisely because Gebser’s holding includes an

exception to the appropriate-person rule: If an official with

authority to remedy Title IX discrimination is also the

perpetrator of Title IX discrimination, and no other official

with authority to remedy Title IX harassment has actual

knowledge of the harassment, then principles of actual-notice

render the wrongdoer’s knowledge irrelevant. See Gebser, 524

U.S. at 291; see also Salazar, 953 F.3d at 277–78.

12

Two implications flow from Gebser. First, a

perpetrator’s knowledge of his own Title IX discrimination

does not satisfy Gebser’s actual-knowledge requirement even

if the perpetrator would otherwise be an appropriate person.

And second, any report to a perpetrator—even if the

perpetrator would otherwise be an appropriate person—will

not satisfy Gebser. To the contrary, for a school district to have

actual knowledge, a report must be made to an appropriate

person who is not the perpetrator.

Even if Gebser’s holding does not explicitly include an

exception for when a perpetrator of sex-based harassment has

authority to remedy Title IX violations, three reasons show that

an exception is necessary.

First, the exception is implied by the statutory provision

that supplied the appropriate-person standard. In Gebser, the

Court “fashioned” the remedy for damages in an implied right

of action using the “appropriate person” standard from Title

IX’s remedial scheme. 524 U.S. at 290. Under Title IX’s

remedial scheme, a recipient of federal funding may not lose

that funding because of sex-based harassment unless a federal

“department or agency . . . has advised the appropriate person

or persons of the failure to comply with the requirement and

has determined that compliance cannot be secured by

voluntary means.” 20 U.S.C. § 1682. “When an individual’s

intentional conduct constitutes the [Title IX] discrimination,

the directive to ‘advise[ ]’ an appropriate person ‘of the failure

to comply’ connotes that the ‘appropriate person’ is unaware

of the misconduct.” Salazar, 953 F.3d at 279 (quoting 20

U.S.C. § 1682).

13

Second, it would frustrate “the purposes of Title IX” to

impose liability on a funding recipient when the only

authorized official who knows of the sexual harassment is the

perpetrator. Id. at 281. Title IX imposes liability only when a

federal-funding recipient knows of harassment and fails to

address it. See id. at 280–81. Imposing liability when only the

perpetrator of the harassment knows of his wrongdoing “would

be more akin to strict liability[,] . . . or to respondeat superior,

which the Supreme Court expressly rejected as a basis for an

implied right of action under Title IX.” Id. at 281 (citing

Gebser, 524 U.S. at 287–88).

Third, when an authorized official perpetrates sexual

harassment in violation of a school district’s stated policy, that

person’s failure to respond could not constitute deliberate

indifference on behalf of the school district. The premise of

damages liability in a Title IX private cause of action “is an

official decision by the recipient not to remedy” a Title IX

violation. Gebser, 524 U.S. at 290 (emphasis added). Gebser

expressly avoided imposing a lower standard that would hold

a school district liable “for its employees’ independent

actions.” Id. at 291. An authorized official’s concealed conduct

that violates an official policy can hardly constitute an official

decision by the school district but rather constitutes the rogue

official’s “independent action[ ].” Id.

Here, the School District’s policy “prohibit[ed] all

forms of unlawful harassment of students . . . by all district . . .

staff members,” which included “inappropriate verbal, written,

graphic or physical conduct of a sexual nature.” App. 286–87.

The policy listed examples of sexual harassment, which

included “sexual flirtations, advances, touching or

propositions[.]” Id. at 287. Sharkey’s unlawful sexual

14

relationship with M.S. flagrantly violated the School District’s

policy and thus cannot be the School District’s “official

decision” not to remedy the Title IX violation. What’s more, a

perpetrator of sex-based harassment who has authority to take

corrective measures on a school district’s behalf is “highly

unlikely” to report his own misconduct to another official “who

is authorized to take corrective measures.” Salazar, 953 F.3d

at 279. For all these reasons, Sharkey, as the wrongdoer, is not

an appropriate person for purposes of the Title IX analysis.

B

Sharkey’s knowledge of his own wrongdoing is

irrelevant to the School District’s actual knowledge of the

sexual harassment. No other appropriate person at the School

District had actual knowledge of Sharkey and M.S.’s sexual

relationship until September 2013. Within days of acquiring

that knowledge, the School District informed Sharkey of its

intention to terminate his employment.

An appropriate person has actual knowledge of Title IX

discrimination when she is aware of known acts of

discrimination. See Davis, 526 U.S. at 643; Bostic v. Smyrna

Sch. Dist., 418 F.3d 355, 361 (3d Cir. 2005). But this standard

may be satisfied only if a school district knows facts showing

a school official poses a substantial danger to students. Bostic,

418 F.3d at 361; cf. Bistrian v. Levi, 696 F.3d 352, 367 (3d Cir.

2012) (explaining that actual knowledge in a deliberate-

indifference standard may be satisfied if circumstantial

evidence can show an official’s actual knowledge).

Information suggesting the mere “possibility” of a sexual

relationship between a student and teacher is not sufficient.

Bostic, 418 F.3d at 360–61.

15

Here, before September 2013, appropriate people did

not have actual knowledge of either Title IX discrimination by

Sharkey or of facts showing that he posed a substantial danger

to students. At most, appropriate people had information—

which they did not ignore—suggesting the possibility of a

sexual relationship between M.S. and Sharkey. The known

facts before September 2013 were insufficient to impose

liability on the School District under an actual-knowledge

standard. See Bostic, 418 F.3d at 360–61.

M.S.’s arguments to the contrary are unavailing. First,

she argues that Sharkey’s conduct constituted harassment. But

that misses the point. The question is not whether Sharkey’s

conduct violated Title IX (both parties agree that it did) but

whether appropriate people knew of the Title IX

discrimination. Second, M.S. argues that there is sufficient

circumstantial evidence to show that appropriate people had

actual knowledge. As we have discussed, there was not. M.S.

contends that Bostic involved less available evidence. But

M.S.’s characterization of Bostic cannot overcome the paucity

of evidence tending to establish actual knowledge. Third, M.S.

points to her expert’s report that stated that “the information

was more than sufficient to place administrators . . . on notice

of the violation.” Appellants’ Br. 27. But an expert cannot

testify to the legal conclusion of whether appropriate people

had actual knowledge. See Berckeley Inv. Grp., Ltd. v. Colkitt,

455 F.3d 195, 217 (3d Cir. 2006) (“[A]n expert witness is

prohibited from rendering a legal opinion.” (citation omitted)).

* * *

16

Because no appropriate person had actual knowledge of

Title IX discrimination, the School District is not liable to M.S.

for damages in her Title IX private right of action. We will

affirm the District Court.

17