KEITH WATKINS, Chief Judge.
The parents of A.M., Jim and Jill Moore, have sued the Chilton County Board of Education, the governing board of the high school where their teenaged daughter attended until May 12, 2010, when tragically she jumped to her death from an interstate overpass. This action proceeds on a claim under Title II of the Americans with Disabilities Act, 42 U.S.C. § 12132, and Section 504(a) of the Rehabilitation Act, 29 U.S.C. § 794(a), that the Board had actual notice of peer-on-peer disability harassment against A.M. but acted with deliberate indifference to the harassment. Before the court is the Board's motion for summary judgment (Doc. # 35), which has been fully briefed (Docs. #36-46, 56-57, 60). After careful consideration of the arguments of counsel, the relevant law, and the record as a whole, the court finds that the motion is due to be granted.
Subject matter jurisdiction is proper pursuant to 28 U.S.C. § 1331. Personal jurisdiction and venue are uncontested.
To succeed on summary judgment, the movant must demonstrate "that there is no
The party moving for summary judgment "always bears the initial responsibility of informing the district court of the basis for its motion." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The movant can fulfill its initial burden by identifying the portions of the record illustrating the absence of a genuine dispute of material fact or, alternatively, by showing that the materials cited by the non-movant do not establish the presence of a genuine dispute or that the non-movant "cannot produce admissible evidence to support the fact." Fed.R.Civ.P. 56(c)(1). If the movant meets its evidentiary burden, the burden shifts to the nonmoving party to establish—with evidence beyond the pleadings—that a genuine dispute material to each of its claims for relief exists. Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548. A genuine dispute of material fact exists when the nonmoving party produces evidence allowing a reasonable factfinder to return a verdict in its favor. Waddell v. Valley Forge Dental Assocs., 276 F.3d 1275, 1279 (11th Cir.2001).
On Wednesday, May 12, 2010, the Moores suffered every parent's worst nightmare when they learned that earlier that morning, their daughter had not gone to school but had taken her own life by jumping from an overpass bridge above Interstate 65 in Chilton County, Alabama. A.M. was fifteen years old at the time and in the tenth grade at Jemison High School. A suicide note, typed on the family computer, read:
(Compl. ¶ 16; Jim Moore's Dep. 63-67; Jill Moore's Dep. 48-50, 74-76.)
The Moores were shocked by the unfathomable loss of their child. They had no idea that A.M. had suicidal tendencies, and they had no idea that anything at school was troubling her. Save one instance during her tenth-grade year when A.M. told her dad that students had been "pick[ing] on" her on the school bus, A.M. had never complained to her parents of any peer-on-peer bullying. (Jill Moore's Dep. 162.) Rather, A.M. typically responded with a perfunctory "fine" when her parents asked about her day at school. (Jim Moore's Dep. 163; Jill Moore's Dep. 25.) But after A.M.'s death, the Moores began to suspect that their daughter had
A.M. was a "little overweight," as described by her father. (Jim Moore's Dep. 135.) At the time of her death, A.M. weighed approximately 225 pounds (Avery's Dep. 15) at an estimated height of 64 inches (Jill Moore's Dep. 51). A.M.'s friend described her as a "big girl," somewhere "in the middle range of skinny and big." (Virginia's Dep. 17.) The assistant principal said that A.M. "was perhaps clinically overweight," but she "was not severely obese." (Assistant Principal Donna Giles's Aff. 3; see also Joann Lewis's Dep. 20 (A.M.'s bus driver who describes A.M. as "heavy but not extremely heavy").)
In addition to being overweight, when A.M. was eight or nine years old, she was diagnosed with Blount's Disease. (Jim Moore's Dep. 86, 89.) Blount's Disease is a "progressive disorder of the proximal growth plate of the tibia, resulting in a range of bowing deformity of the legs." (Report of Michael D. Freeman, Ph.D., at 2 (Doc. #48-1).) A.M.'s medical records confirm that A.M. had "progressive juvenile onset tibia vera," also known as Blount's Disease, and that at age ten—the summer before her fifth grade year—she underwent surgery for her tibia vera to treat her "rapidly progressive bowleggedness" and "obvious stance deformity of the left knee." (Medical Records 37, 86-87.) During the beginning of her fifth grade year, as a result of the surgery, A.M. used a wheelchair and then a walker. (Jill Moore's Dep. 43-45.) It is undisputed that, after her fifth-grade year, A.M. did not require the use of any walking aid, such as a leg brace, cane, crutches, walker, or wheelchair.
Mr. Moore, A.M.'s father, testified, however, that, even after the surgery up until the time of her death, A.M. "walked with an unusual gait because of her knee" and that A.M. "could not run and jump." (Jim Moore's Dep. 173; see also Jim Moore's Dep. 177 (A.M. "walked with a limp.").) One of A.M.'s friends at school, Virginia, described A.M. as having "big legs" that were "a little outward instead of . . . inward and straight," and said that A.M. walked with a noticeable limp as if "one of [her] legs was shorter than the other." (Virginia's Dep. 19-22; see also Lewis's Dep. 20 (observing that A.M.'s "hips were kind of stiff" when she walked).)
In 2008, when A.M. entered Jemison High School in the ninth grade, other students began teasing her because of her weight and her awkward way of walking. Two of A.M.'s peers at Jemison High School, Virginia and Brandon, describe the harassment that A.M. endured. Virginia became good friends with A.M. when Virginia was in the eleventh grade and A.M. was in ninth grade. (Virginia's Dep. 16, 93, 96.) They had several classes together and would sit together in the cafeteria when their schedules permitted. (Virginia's Dep. 16, 96-97, 139-40.) According to Virginia, during A.M.'s ninth—and tenth-grade years, students made fun of A.M. because of the way she walked and "especially [because of] her weight." (Virginia's Dep. 24.) These students mainly were cheerleaders and football players. (Virginia's Dep. 41, 60.) The cheerleaders would call A.M. "ugly names," such as "fat ass" and "fat bitch." (Virginia's Dep. 41, 104.) The name-calling "happened a lot, just about every day" during the two school years preceding A.M.'s death. (Virginia's Dep. 41, 48.) Virginia identifies by name one cheerleader who made fun of A.M., but she knows that there were more "than just this one." (Virginia's Dep. 102, 108.) Additionally, Virginia observed football players and "some boy basketball players" call A.M. a "fat ass" and "fat bitch" and make "fun of her walk." (Virginia's
Virginia recalled that in A.M.'s ninth-grade year, "a couple of times" when the two of them would walk together down the hallway and would pass "big groups" of students, those students "would talk about [her] and A.M.," but Virginia could not remember the names of those students nor did she indicate what these students said. (Virginia's Dep. 145-46.) Virginia did recount some specific incidents, however, and named some students who harassed A.M. (Virginia's Dep. 79, 80.) For instance, on one occasion, a male student, whom Virginia identified by name, was standing in the hallway with a "big group" of students and made fun of A.M. as they walked by. That student made fun of A.M.'s limp and called her fat. (Virginia's Dep. 147-48.) On several other occasions, another male student would tease A.M. about her limp and her "look[s]" as she and Virginia passed by him in the hallway. (Virginia's Dep. 149-50.) On another occasion during A.M.'s tenth-grade year, a female student, who was hanging out with a group of students in the hallway, harassed A.M. about the "way [she] walked and the way she talked." (Virginia's Dep. 152.) In response to the constant name-calling, A.M. would either ignore it or tell the perpetrators to "shut up" or "mind their own business." (Virginia's Dep. 40, 148.) Other than name-calling directed at A.M., Virginia recalls an incident where A.M. dropped her books and other students laughed "because [A.M.] had to bend over and pick them up." (Virginia's Dep. 39.) Virginia also recalls that a few kids helped A.M. pick up her books. Virginia did not report to a teacher or school administrator any of the "incidents where [she] overheard students in the hallway making comments about [A.M.] as [they] walked past." (Virginia's Dep. 168.)
The name-calling occurred primarily in the hallways—in between classes, in the morning, and after school. (Virginia's Dep. 45, 103.) Virginia did not witness any student bully A.M. in the classroom. (Virginia's Dep. 46.) Virginia noted that teachers and other school employees likely would not have heard the other students' comments because most of the teasing occurred in the hallways while the teachers were in their classrooms getting ready for the next class and that any teasing would cease temporarily if a student saw a teacher in the vicinity. (Virginia's Dep. 43-44.) Virginia did not recall that any teacher on a regular basis stood in the hallways to monitor student activity (Virginia's Dep. 43-45), and Virginia testified that, in the cafeteria, the teachers generally sat together at a separate table, thereby permitting another venue for peer-on-peer bullying to go undetected. (Virgina's Dep. 50-51.)
At some point, Virginia told some of the teachers that A.M. was "getting bullied a little bit," but these teachers said, "[J]ust let [A.M.] walk away" and "ignore it," but told Virginia that if the teasing got worse to "take it to the office and tell the principal." (Virginia's Dep. 52.) Virginia did not remember the names of any of the teachers who made those comments.
Virginia did identify one teacher, Jill Easterling, whom she told about A.M.'s bullying. (Virginia's Dep. 53, 55.) Although Virginia cannot remember the specifics of what she told Ms. Easterling, she remembers that after that conversation, Ms. Easterling would "watch[] over [A.M.]" from her classroom door while A.M. was in the hallway. (Virginia's Dep. 54, 55.) Virginia did not know, however, if Ms. Easterling ever relayed what she told her to any school administrator. (Virginia's Dep. 54.) Virginia also did not have any personal knowledge of whether A.M.
Brandon, one of A.M.'s classmates, also gave deposition testimony about the bullying A.M. endured at Jemison High School. He was one of the bullies. Although Brandon did not notice anything unusual about A.M.'s walk, he ridiculed her because she was overweight. (Brandon's Dep. 12, 21, 54.) Beginning in A.M.'s freshman year, Brandon picked on A.M. "about her size." (Brandon's Dep. 39.) He picked on her "every day" on the bus, in the hallways, and in the lunchroom. (Brandon's Dep. 38-39.) Brandon said that A.M. typically would ignore him.
During their ninth-grade year, Brandon also overheard other students call A.M. "fat," "fat ass," and "fat bitch." (Brandon's Dep. 35-36.) In their tenth grade year, Brandon saw other students bully A.M. "from time to time" either in the hallways or in the cafeteria. (Brandon's Dep. 48.) He recollects that bullying generally occurred in the hallways, not in the classroom, that bullying was not as intense when he was in the tenth grade, but that he witnessed "some" incidents of bullying against A.M. that year. (Brandon's Dep. 30-31, 48-49.) He also continued to bully A.M. in the tenth grade, but not within plain sight of teachers. (Brandon's Dep. 52.) He said that all of his bullying against A.M. was because of her weight. (Brandon's Dep. 72.)
Brandon also identifies two of his peers who in tenth grade bullied A.M. on a "nearly a daily basis" in the gym by "making fun of her size" and her weight. (Brandon's Dep. 59, 61, 132, 134) Brandon says that the gym provided a prime opportunity for teasing because the physical education teacher, Leighsa Robinson, spent the majority of class in her office, which was not in the gym. (Brandon's Dep. 63.)
Moreover, the school quarter in which A.M. died, Brandon and A.M. were in a class together, called Life (Lifelong Individualized Physical Education).
Brandon testified that he particularly enjoyed teasing A.M. on the school bus, and he did so during their ninth—and tenth-grade years. He sat at the back of bus, and A.M. sat in the row diagonally in front of him. (Brandon's Dep. 40, 123-24.) He would most often call A.M. "fat" or "fatty," but a time or two, he called her "fat ass." (Brandon's Dep. 128, 130.) A.M. ignored him, but finally, one day in the tenth grade, A.M. turned around and told him to "shut up," and he did at least for that bus trip. (Brandon's Dep. 128-29.) Brandon also recalls one other occasion after that when she told him to "shut up." (Brandon's Dep. 129.) Ms. Lewis, the bus driver, occasionally would pull the bus over to the side of the road and would tell the students to be quiet so that she could pay attention to the road and make sure everyone got home safely, but she would not mention bullying specifically, and Brandon could only speculate that bullying, versus other bad behavior, was the reason. (Brandon's Dep. 43-44, 50.)
In tenth grade, A.M. told her father that students "picked on" her on the school bus and that Brandon was the main bully.
Ms. Lewis says that A.M. never complained to her that any student was picking on her and that she (Ms. Lewis) never witnessed any student bully A.M. (Lewis's Dep. 37-38, 49; Lewis's Aff. 4.) At some point during the 2009-10 school year (A.M.'s tenth-grade year), however, Ms. Lewis either heard about or saw Brandon "picking on A.M." (Lewis's Aff. 4; Lewis's Dep. 31, 35.) Ms. Lewis does not remember the specific circumstances surrounding what she heard, saw, or was told, but she says that she moved Brandon to the seat behind hers for approximately two weeks. (Lewis's Aff. 4; Lewis's Dep. 32.) After the two-week period, upon Brandon's request and his assurance that he and A.M. had resolved their differences, Ms. Lewis permitted him to move back to his seat at the back of the bus. (Lewis's Aff. 4-5.) After that, Ms. Lewis "never saw any misconduct by [Brandon] directed at A.M." (Lewis Aff. 5.) Ms. Lewis did not advise the school administration of the situation since she felt that she "had taken care of it."
Ms. Giles never received a report from the principal,
After A.M. committed suicide, Plaintiffs filed this lawsuit against the Board.
A prior Memorandum Opinion and Order narrowed the counts. (Doc. # 19.) Count I was dismissed for failure to state a claim; hence, this action proceeds only as to Counts II and III.
Counts II and III allege claims under Title II of the ADA and Section 504(a), both of which address discrimination against disabled students. Title II of the ADA provides that "no qualified individual with a disability shall, by reason of such disability, ... be subjected to discrimination by any such entity." 42 U.S.C. § 12132. Similarly, § 504(a) provides that "[n]o otherwise qualified individual with a disability in the United States ... shall, solely by reason of her or his disability,... be subjected to discrimination under
Under § 504(a), Plaintiffs must prove that the Board "intended to discriminate against [A.M.] on the basis of [her] disability." T.W. ex rel. Wilson v. Sch. Bd. of Seminole Cnty., 610 F.3d 588, 604 (11th Cir.2010) (citation and internal quotation marks omitted). The Eleventh Circuit has held that "the same standards govern discrimination" under § 504(a) and the ADA. Id. Based upon this circuit authority, the court will analyze the ADA and Section 504 claims together as the parties have.
At the motion-to-dismiss stage, consistent with the parties' approach, the court analyzed the ADA and § 504(a) disability harassment claims under the framework established in Davis v. Monroe County Board of Education, 526 U.S. 629, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999), a peer-on-peer sexual harassment case brought under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681(a). The parties continue to rely on Davis's framework, and the court will do the same. Davis held that under Title IX, schools "are properly held liable in damages only where they are deliberately indifferent to sexual harassment, of which they have actual knowledge, that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school." Davis, 526 U.S. at 650, 119 S.Ct. 1661. Applying Davis to peer-on-peer disability harassment claims under the ADA and § 504(a), the court finds that the plaintiff must satisfy the following five elements:
Long v. Murray Cnty. Sch. Dist., No. 10cv15, 2012 WL 2277836, at *26 (N.D.Ga. May 21, 2012) (observing that "courts have applied the case law and reasoning governing Title IX peer-on-peer sexual harassment claims to § 504 and ADA peer-on-peer disability harassment claims" (collecting cases)), aff'd, 522 Fed.Appx. 576 (11th Cir.2013).
The Board challenges Plaintiffs' ability to survive summary judgment on all five elements. For the reasons that follow, the Board has demonstrated that there is no genuine dispute of material fact with respect to the fourth and fifth elements. Some discussion of the first, second, and third elements follows, but as to those elements, the court assumes without deciding that Plaintiffs can meet their summary judgment burden.
As relevant here, the ADA defines an individual with a "disability" as one who
The ADA's implementing regulations define "physical or mental impairment" as
29 C.F.R. § 1630.2(h) (2011).
The Board does not challenge that under the ADA, Blount's Disease qualifies as an impairment, and it also admits that "the medical records show that A.M. suffered from Blount's Disease in her left leg in her elementary school years." (Doc. # 46, at 14.) The Board argues, however, that the medical records do not prove that A.M. "suffered from Blount's Disease after the surgery or that Blount's Disease impacted A.M. any during the time she was a student at JHS." (Doc. # 60, at 19.) The Board emphasizes that A.M. underwent corrective surgery in June 2005, required only temporary wheelchair assistance in the fifth grade, and had not visited her treating physician since March 2006.
The gist of the Board's argument is that there is a lack of medical evidence of a post-operative diagnosis of Blount's Disease. Although the medical evidence in the summary judgment record ends in March 2006, that evidence suggests that post-surgery, A.M. continued to suffer some physical effects from Blount's Disease. For instance, the clinic note from A.M.'s treating physician, dated nine months after A.M.'s surgery, denotes A.M.'s "diagnosis" as "follow up tibi vara," and, while providing that A.M. was recovering well, also documented "[s]light residual deformity." (Doc. # 45-1, at 17.) Moreover, even if A.M. did not retain a formal diagnosis of Blount's Disease after her surgery, a diagnosis is not synonymous with a disability. See Sutton v. United Air Lines, 527 U.S. 471, 483, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999) ("The determination of whether an individual has a disability is not necessarily based on the name or diagnosis of the impairment the person has, but rather on the effect of that impairment on the life of the individual." (quoting 29 C.F.R. pt. 1630, App. § 1630.2(j)), superseded in part by statute, ADA Amendments Act of 2008, Publ. L. 11-325 (2008)). Here, there is sufficient evidence to create a genuine dispute of material fact whether A.M. had a qualifying impairment.
It is unclear if Plaintiffs are alleging that A.M.'s weight (225 pounds at 64 inches tall) amounts to an additional disability or that it is a side effect of her Blount's Disease.
The Board focuses its summary judgment argument, not on whether obesity is a qualifying impairment under the ADA, but rather on the alleged absence of evidence that A.M. was obese in the first place. (Doc. # 46, at 11.) It also objects to the admissibility of Plaintiffs' belatedly disclosed printout from the Centers for Disease Control and Prevention's online BMI Percentile Calculator for Child and Teen, indicating that A.M.'s weight based upon her height and age rendered her "obese." (See Doc. # 56-6.) Other than offering the BMI calculator results, Plaintiffs do not discuss the threshold issue of whether A.M.'s extra pounds would qualify as an impairment. (See Doc. # 57, at 11.) Because this issue is not adequately briefed by either party and because other aspects of the analysis are dispositive, the court will assume, without deciding, that Plaintiffs have demonstrated that A.M.
Plaintiffs contend that A.M. was substantially limited in her ability to "run or jump." (Doc. # 57, at 11; see Jim Moore's Dep. 173 (A.M. "could not run and jump."); Jim Moore's Dep. 177 (A.M. "could not run without pain.").) The Board does not refute the evidence that A.M. could not run or jump. It argues, however, that "running and jumping are not major life activities," in particular because these activities do not "impact a high school student's ability to receive an education." (Doc. # 60, at 17.)
The ADA provides a list of "major life activities," which "include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working."
The EEOC implementing guidelines, see supra note 9, provide a comprehensive definition of "substantially limits" in favor of "expansive coverage":
29 C.F.R. § 1630.2(j)(1)(2011). This expansive coverage does not, however, relieve a plaintiff of his or her burden to "offer[ ] evidence that the extent of the limitation caused by the impairment is substantial." Hunter v. U.S. Postal Serv., 535 Fed.Appx. 869, 872 (11th Cir.2013) (citation and internal quotation marks omitted).
Although running and jumping are not included in the statutory list of major life activities, neither party has argued that the omission is fatal, presumably because the list is expressly non-exhaustive. The parties do not cite any Eleventh Circuit or other circuit authority addressing whether running or jumping is a major life activity under the ADAAA, and there is a dearth of post-ADAAA case law in any circuit on this issue.
As Plaintiffs correctly point out, the ADAAA "broadened the definition of what constitutes a disability." Nyrop v. Indep. Sch. Dist. No. 11, 616 F.3d 728, 734 n. 4 (8th Cir.2010). Although the ADAAA has not yet been the subject of extensive case law analysis, those courts that have analyzed it have "appl[ied] it broadly to encompass disabilities that previously might have been excluded." Harty v. City of Sanford, No. 11 cv 1041, 2012 WL 3243282, at *5 (M.D.Fla. Aug. 8, 2012) (collecting cases). Notwithstanding the pre-ADAAA out-of-circuit authority suggesting that running and jumping are not major life activities, the court is reluctant to find as a matter of law that they are not, given the more expansive coverage under the ADAAA, and the regulations cautioning that the court's focus should be primarily on whether covered entities "have complied with their obligations and whether discrimination has occurred, not whether an individual's impairment substantially limits a major life activity." 29 C.F.R. § 1630.2(j)(1)(iii). The court will assume without deciding, therefore, that running and jumping are major life activities.
Finally, the Board does not seriously question the evidence that A.M. was substantially limited in her ability to run or jump without pain. Rather, the Board argues that A.M.'s ability to run or jump is not substantially limited because any physical limitations A.M. had with respect to those activities did not impact her ability to receive a high school education. But the ADA's implementing regulations focus on the effect of the impairment on the individual's life activities, not educational activities, and permit a broad-based comparison between the ability of that individual to perform a major life activity "as compared to most people in the general population," not most people in an educational setting. 29 C.F.R. § 1630.2(j)(1)(ii). Given this regulatory definition and absent the Board's citation to any authority to support its position, the court declines to adopt it.
In sum, the first element of Plaintiffs' claim—requiring that A.M. is an individual with a disability—is assumed for purposes of the summary judgment analysis.
The Board argues that Plaintiffs cannot produce evidence that A.M. was harassed based upon any disability. The Board focuses primarily on Brandon's derogatory remarks to A.M. about her weight and Brandon's testimony that he was unaware that A.M. walked with a limp. It argues that Brandon's testimony demonstrates that any harassment A.M. suffered was not based upon any impairment related to her early childhood diagnosis of Blount's Disease. It argues further that, in any event, A.M. was not disabled, and, thus,
In the first instance, the Board's argument ignores Virginia's deposition testimony that A.M.'s peers taunted her not only because she was overweight but also because of the way she walked. Additionally, as discussed above, the court has assumed, without deciding, that A.M.'s limited mobility and weight qualify as ADA disabilities; hence, the Board's arguments challenging A.M.'s proof with respect to her disabilities have no force at this point. The court declines, however, to resolve this element for or against the Board on summary judgment and instead finds that it suffices to assume without deciding that the harassment A.M. endured was based upon her disabilities.
The Board also argues that any disability-based harassment was not sufficiently severe or pervasive that it altered the conditions of A.M.'s educational opportunities. "In the context of student-on-student harassment, damages are only available where the behavior is so severe, pervasive, and objectively offensive that it denies its victims equal access to education." Hawkins v. Sarasota Cnty. Sch. Bd., 322 F.3d 1279, 1288 (11th Cir.2003) (citing Davis, 526 U.S. at 650, 119 S.Ct. 1661). "Whether [disability] oriented conduct rises to the level of actionable harassment often depends on a constellation of surrounding circumstances, expectations, and relationships, including, but not limited to, the ages of the harasser and victim, and the number of individuals involved." Id.
As the Board points out, some of the harassment allegations in the Complaint find no substantiation in the summary judgment record. Discovery did not bear out admissible evidence that A.M. was the object of "pig races" or that her peers locked her in a janitor's closet and "stripped down" her pants in front of other peers. (Compl. ¶¶ 45-46; see, e.g., Virginia's Dep. 46, 55, 58-59 (recounting no knowledge of an incident where A.M. was "pantsed," locked in a closet, or subjected to a pig race); Brandon's Dep. 58, 94 (testifying that he had never heard of a pig race and was unaware of other students having locked A.M. in a room); Lewis's Aff. 5 (attesting that she had "never heard the term `pig race' and do[es] not believe that any such activity could have occurred on [her] bus").)
Discovery did bear out, however, that on a daily basis multiple students hurled insults at A.M. based upon her weight (e.g., "fat," "fatty," "fat bitch," "fat ass") and her limp and that A.M. had to endure this daily name-calling for the duration of her ninth—and tenth-grade years at Jemison High School. The court recognizes that admissible evidence of acts of physical bullying is essentially non-existent, but it cannot readily acquiesce in the Board's argument that the duration and frequency of the derogatory remarks that A.M., a young teenager of impressionable years, had to endure amount to nothing more than "simple acts of [non-actionable] teasing and mere name-calling." Hawkins, 322 F.3d at 1288. Moreover, it is notable that if Plaintiffs were able to prove that the two school years of harassment caused A.M. to commit suicide, then it logically follows that the consequences of the disability-based harassment—A.M.'s death—resulted in the complete denial of access to all education.
The court need not wrestle with these issues, however, as it again will assume without deciding that Plaintiffs have raised
The Board contends that Plaintiffs cannot show that an appropriate person employed by the Board had actual knowledge of the alleged disability harassment against A.M. "An `appropriate person' must have actual knowledge of the discrimination or harassment the plaintiff alleges occurred." Williams v. Bd. of Regents of Univ. Sys. of Ga., 477 F.3d 1282, 1293 (11th Cir.2007) (quoting Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998)).
"An `appropriate person' ... is, at a minimum, an official of the recipient entity with authority to take corrective action to end the discrimination." Gebser, 524 U.S. at 290, 118 S.Ct. 1989. The first task is to identify who Plaintiffs contend is an "appropriate person." That issue is not entirely clear because Plaintiffs' brief omits any discussion of which school officials they contend qualify as appropriate persons, but Plaintiffs' list arguably could include unnamed teachers, one named science teacher (Jill Easterling), a physical education teacher (Leighsa Robinson), a bus driver (Joann Lewis), and the assistant principal (Donna Giles). The Board concedes that Ms. Giles is an appropriate person (Doc. # 46, at 20),
In response to the Board's assertions, Plaintiffs remain silent. Plaintiffs do not address whether A.M.'s teachers or A.M.'s bus driver are appropriate persons or present a factual basis for making that assessment, notwithstanding clear precedent
Murrell v. Sch. Dist. No. 1, Denver, Colo., 186 F.3d 1238, 1247 (10th Cir.1999); see also Santiago, 655 F.3d at 75 ("Although it mentions [the plaintiff's] teacher and the school social worker, the complaint contains nothing that suggests that either of them comes within Title IX's `appropriate person' taxonomy."). With respect to teachers, in Hawkins, a Title IX case in which second-grade female students in a Florida public school system alleged that a male peer sexually harassed them for several months, the Eleventh Circuit observed that it was an open question "whether notice to a teacher constitutes actual knowledge on the part of a school board." 322 F.3d at 1286. The issue of whether a teacher can qualify as an appropriate person remains open after Hawkins because Hawkins was resolved against the plaintiffs on other grounds. The Eleventh Circuit recognized nonetheless that the inquiry is fact dependent: "In order to answer the question [of whether the students' teacher is an appropriate person], it would be necessary to examine how Florida organizes its public schools, the authority and responsibility granted by state law to administrators and teachers, the school district's discrimination policies and procedures, and the facts and circumstances of the particular case."
Hawkins elucidates the factual void in the summary judgment record of which Plaintiffs bear the consequences. Plaintiffs cite no evidence that sheds light on what authority A.M.'s teachers or bus driver had to take corrective measures in response to complaints of peer-on-peer disability harassment and, as stated, make no cogent argument that these individuals qualify as appropriate persons.
The analysis could conclude here—as to all school officials but the assistant principal—for failure of Plaintiffs to raise a genuine dispute of material fact as to whether A.M.'s teachers and her bus driver are appropriate persons. Nonetheless, the analysis proceeds as summary judgment also is due the Board on additional grounds.
"An `appropriate person' must have actual knowledge of the discrimination or harassment the plaintiff alleges occurred."
To show actual knowledge, Plaintiffs argue, in the discussion section of their brief, that the "harassment was open and obvious on the school bus, in the hallways, in the cafeteria and in the gym" such that a reasonable jury could infer that any school employees in those areas witnessed the harassment. (Doc. # 57, at 14.) They also assert that "multiple teachers witnessed the harassment" and that a student reported the harassment of A.M. to multiple teachers. (Doc. # 57, at 14.) Moreover, Plaintiffs suggest, in their statement of facts, that Ms. Giles (the assistant principal), Ms. Robinson (the physical education teacher), and Ms. Lewis (the bus driver) had actual notice. (Doc. # 56, at 5.) None of these arguments prevails.
Plaintiffs do not cite any authority to support their "open and obvious" theory. That failure is not surprising because the argument is premised on a theory
With respect to unnamed teachers, the Complaint alleges that numerous teachers witnessed acts of bullying against A.M., and, as stated, Plaintiffs' summary judgment briefing echoes those allegations. But this litigation has passed the motion-to-dismiss stage, and Plaintiffs do not cite any evidence that reveals the identity of these teachers, what they personally saw, when they saw it, or where they saw it. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (A motion for summary judgment looks to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial."). Plaintiffs fail to raise a genuine dispute of material fact that any teacher personally witnessed any bullying against A.M.
The analysis turns to whether any teacher or other school official received a report of disability harassment against A.M. Plaintiffs argue that a student, presumably Virginia, reported bullying against A.M. to multiple teachers, but Virginia names only one teacher, Ms. Easterling. Thus, the court will examine whether there is evidence raising a genuine dispute of material fact that the assistant principal (Ms. Giles), the science teacher (Ms. Easterling), the physical education teacher (Ms. Robinson), or the bus driver (Ms. Lewis) had actual notice.
Ms. Giles presents affirmative evidence that she had no knowledge of any bullying against A.M. and that she never received a complaint of peer-on-peer disability-based harassment (or any other bullying activity) against A.M., from either a student, a teacher (including A.M.'s guidance counselor and STEP teacher), or A.M.'s parents. (Giles's Aff. 3, 4, 6.) Plaintiffs attempt to refute Ms. Giles's affidavit testimony by relying on the deposition testimony of Brandon. However, Brandon's testimony cannot create a genuine dispute of material fact as to Ms. Giles's knowledge because it is not based upon Brandon's personal knowledge, but rather amounts to hearsay and speculation.
Turning to Ms. Robinson, she provides affidavit testimony that "A.M. never reported to [her] that she was being bullied or harassed or picked on in any of [her] classes." (Robinson's Aff. 3.) Plaintiffs again rely solely on Brandon's deposition testimony to refute Ms. Robinson's affidavit testimony, but again Brandon's testimony is inadmissible for the point offered. Brandon testifies that he "believe[s] [A.M.] told [Ms. Robinson] one time" about the bullying because on a particular day when students had called her names, A.M. went to Ms. Robinson's office, and after that Ms. Robinson "made [the students] sit down for the rest of the period."
Virginia believes she confided in Ms. Easterling about the bullying against A.M.
As to Ms. Lewis, A.M.'s bus driver, it is undisputed that she received notice during A.M.'s tenth-grade year that Brandon was "picking on" A.M. (Lewis's Aff. 4.) Plaintiffs point to no evidence, however, indicating that Ms. Lewis received information regarding the nature of Brandon's teasing. Ms. Lewis cannot recall exactly what she heard or saw (Lewis's Aff. 4), and the Moores do not fill in that knowledge gap. (Jim Moore's Dep. 132-34; Jill Moore's Dep. 110.) In fact, Ms. Lewis's deposition testimony, which Plaintiffs fail to cite, suggests that Ms. Lewis did not know that Brandon had picked on A.M. because of her weight. (See Lewis's Dep. 30, 38.) This leaves unanswered whether Ms. Lewis knew that Brandon possibly was bullying A.M. on the basis of her presumed disabilities. Plaintiffs fail to demonstrate that the substance of the notice to Ms. Lewis was sufficient to alert her of the possibility of disability harassment against A. M.
With the exception of Assistant Principal Giles, whom the Boards concedes is an appropriate person, Plaintiffs fail to offer any evidence to show that A.M.'s teachers and bus driver qualify as appropriate persons. Plaintiffs cannot establish actual knowledge on the part of the Board on the basis of their open and obvious theory because actual knowledge, not constructive knowledge, is the standard. Plaintiffs also fail to raise a genuine dispute of material fact that Ms. Giles, Ms. Robinson, Ms. Easterling, or Ms. Lewis, assuming arguendo that the latter three are appropriate persons, had actual knowledge notice of the possibility that A.M.'s peers had subjected her to disability harassment. Plaintiffs offer no other argument or theory for finding that that an appropriate person had actual knowledge of the discrimination, i.e., disability harassment, that they allege A.M. endured. Accordingly, the Board is entitled to summary judgment on Plaintiffs' ADA and § 504(a) disability harassment claims for failure to raise a genuine dispute of material fact that the Board had actual knowledge of the possibility that A.M.'s peers had subjected her to disability harassment.
The Board cannot be held liable for disability harassment of which it had no actual notice, and this is the only conclusion that a sifting of the summary judgment evidence yields. But the court will take a moment to discuss the responses that Ms. Easterling and Ms. Lewis took when they received information about non-specific bullying against A. M.
An appropriate person not only must have actual notice of the possibility of disability harassment, but also must act with deliberate indifference to that known harassment. See Broward Cnty., 604 F.3d at 1259. In Davis, the Supreme Court explained that a Title IX funding recipient is "deliberately indifferent" to acts of student-on-student harassment only where the recipient's response to the harassment or lack thereof is "clearly unreasonable" in light of the known circumstances. 526 U.S. at 648, 119 S.Ct. 1661. Because the standard is more than "a mere reasonableness standard," the Supreme Court emphasized that, "[i]n an appropriate
Plaintiffs do not contend that Ms. Easterling and Ms. Lewis did nothing in response to a report of bullying against A.M. According to Virginia, after she spoke to Ms. Easterling, Ms. Easterling would "watch[ ] over [A.M.]" from her classroom door while A.M. was in the hallway. (Virginia's Dep. 54, 55.) Plaintiffs point to no evidence and make no argument that Ms. Easterling observed any disability harassment against A.M. but took no action during those watchful times. There is no evidence from which it can be inferred that Ms. Easterling, based upon what she knew, acted clearly unreasonably in her response to Virginia's report that A.M. was the subject of peer-to-peer bullying.
Ms. Lewis also undisputedly implemented disciplinary action after she received a report that Brandon had been "picking on" A.M. on the bus. Ms. Lewis separated Brandon from A.M. and moved Brandon to a seat at the front of the bus for two weeks so she could monitor him. After that, Ms. Lewis "never saw any misconduct by [Brandon] directed at A.M. after [Brandon] moved back to his seat." (Lewis's Aff. 5.) Based upon the summary judgment record and the circumstances known to Ms. Lewis, her actions were not clearly unreasonable as a matter of law when she took no additional disciplinary measures against Brandon after observing no further harassment and receiving no other reports of harassment against A. M., from A.M., from another student, or from A.M.'s parents. While Plaintiffs indicate that more should have been done by the Board, "a claim that the school system could or should have done more is insufficient to establish deliberate indifference." Porto v. Town of Tewksbury, 488 F.3d 67, 73 (1st Cir.2007) (citing Davis, 526 U.S. at 648, 119 S.Ct. 1661). In short, the evidence is insufficient to raise a genuine dispute of material fact that either Ms. Easterling or Ms. Lewis acted with deliberate indifference, even if ultimately their response did not stop the disability harassment.
The standard for holding the Board liable under the ADA and the Rehabilitation Act for peer-on-peer disability harassment is rigorous. Plaintiffs have failed to raise a genuine dispute of material fact that the
Accordingly, it is ORDERED that Defendant's motion for summary judgment (Doc. # 35) is GRANTED. A separate final judgment will be entered.
