LAWRENCE P. ZATKOFF, District Judge.
This matter is before the Court on Defendant's Motion for a Judgment as a Matter
In this Court's November 28, 2007, Opinion and Order granting Defendant's motion for summary judgment, the Court extensively set forth and considered the "facts" in a light most favorable to Plaintiff, as it was required to do. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In deciding a motion for judgment as a matter of law pursuant to Rule 50 of the Federal Rules of Civil Procedure, the Court must analyze the facts in the same manner. See Section III, infra. Significantly, however, (1) undisputed trial testimony and trial exhibits exposed a number of critical facts that were not discussed in the parties' briefs addressing Defendant's motion for summary judgment; (2) undisputed trial testimony and trial exhibits revealed that certain key "facts" discussed by the Court in its November 28, 2007, Opinion and Order (and/or by the Sixth Circuit when deciding Plaintiff's appeal of this Court's November 28, 2007, ruling
Plaintiff testified that, while attending Hudson Middle School for sixth grade, other students began teasing him and calling him names (including "gay," "fag" and "faggot"). Plaintiff and his parents testified that they reported the name calling to his teachers, Mrs. Fitch and Mrs. Riley, as well as the Hudson Middle School principal, Greg Rozeveld ("Principal Rozeveld"). Gretchen Warwick, PhD ("Dr. Warwick"), a psychologist Plaintiff utilized, testified Plaintiff was distraught, anxious and angry due to school-related issues when she resumed seeing him in May 2002, at the conclusion of Plaintiff's sixth grade year.
Plaintiff and his parents testified that, while in seventh grade at Hudson Middle School, Plaintiff experienced: (1) daily name calling, including such things as "fag," "faggot," "gay," "queer," and "man boobs" (a term referring to an enlargement of Plaintiff's breast area because he had put on 40 pounds of weight over the summer due to taking medication); (2) in the second half of his seventh grade year, being called "Mr. Clean" on a regular basis; (3) being slapped by a seventh grade girl named Brittany when Plaintiff attempted to intervene on behalf of a girl being teased and taunted by Brittany; and (4) on the same day Brittany slapped Plaintiff, being teased by a teacher, John Redding ("Mr. Redding"), in front of the class, who said to Plaintiff: "Patterson, how did it feel to be slapped by a girl?"
Plaintiff and his parents testified that, as a result of and in order to escape the name calling, in particular the "man boobs" teasing, Plaintiff resorted to eating his lunch in the band room during his seventh grade year. Plaintiff and his parents also testified that, by the end of the first semester of seventh grade, Plaintiff wanted to quit school. About that time, David Patterson contacted Principal Rozeveld about Plaintiff's struggles. It is undisputed that: (a) Principal Rozeveld offered to meet with Plaintiff at the end of each day to help Plaintiff with his struggles, and (b) an arrangement for Principal Rozeveld and Plaintiff to meet at the end of the day was agreed upon, but that arrangement ended soon after it began. Plaintiff and his parents testified that they discussed issues Plaintiff was encountering during his seventh grade year with Hudson Middle School personnel, as follows:
School records reflect that Plaintiff's grades fluctuated while he was in seventh grade. His progress reports often contained poor or failing grades, but his final grades were much higher.
The trial testimony regarding the time from the conclusion of Plaintiff's seventh grade year through his eighth grade year is undisputed. At the end of Plaintiff's
Before Plaintiff started ninth grade at Hudson High School, the IEP team met to determine what type of IEP to implement for Plaintiff's ninth grade year. Again, David and Dena Patterson were members of the IEP team but Plaintiff was not (though he was invited to his IEP meeting). David and Dena Patterson both requested that Plaintiff continue to be assigned to Mr. Adams and receive the same services provided to Plaintiff during his eighth grade year.
Ultimately, after Mr. Adams volunteered to be available to provide services for Plaintiff during Plaintiff's ninth grade year, the IEP team developed an IEP for Plaintiff. David and Dena Patterson expressly agreed to the terms of Plaintiff's ninth grade IEP, which provided that:
It is undisputed that Mr. Adams provided Plaintiff with resource room services for ninth grade pursuant to the terms of the implemented IEP. It also was the undisputed testimony of witnesses that Plaintiff saw Mr. Adams each week and that Plaintiff had the ability to access Mr. Adams' resource room as he desired.
In early September of Plaintiff's ninth grade year (i.e., right after school started), an incident occurred where Billy H., Sheila K. and Kelly W. asked Plaintiff if Plaintiff remembered being called "Mr. Clean" in middle school. Plaintiff reported this incident to Ms. Mansfield, who is a counselor for both Hudson Middle School and Hudson High School. After speaking with Plaintiff, Ms. Mansfield promptly: (a) summoned Billy H., Sheila K. and Kelly W. to her office to discuss the incident, (b) explained to them that Plaintiff was hurt by their "Mr. Clean" comments, and (c) verbally reprimanded all three of them. Ms. Mansfield then called Plaintiff back into her office, with Billy H., Sheila K. and Kelly W. still present. It is undisputed that the three students apologized to Plaintiff, but that Plaintiff: (1) refused their request for forgiveness, (2) told them that "it was their problem," and (3) left the meeting. Plaintiff testified that he never had a problem with Billy H., Sheila K. or Kelly W. again. Plaintiff and his parents testified that this occurred simultaneously with a number of students calling Plaintiff "gay," "fag" and "queer" on a near daily basis, and Dena Patterson testified that she reported this name-calling to Hudson High School administrators.
Plaintiff and/or his parents reported several incidents to Defendant's administrators in December 2004 (his ninth grade year). On or about December 10, 2004, Joe R. and Jeff L. defaced multiple pages of Plaintiff's daily planner. The single page admitted as evidence included the following terms/drawings: "I love [in the form of a heart] penis," "I lick it in the ass," "I'm a MaMMa's boy," "I suck on her nipple" and a diagram of a penis being inserted into a rectum with the word "cock" written underneath. Principal Osborne verbally reprimanded Joe R. and Jeff L. for their conduct. The undisputed testimony was that Plaintiff had no problems with Joe R. thereafter. Jeff L. harassed Plaintiff one more time-four days later. On December 14, 2004, Plaintiff returned to his locker to find a poster of "Mr. Clean" taped to his hall locker, an act was perpetrated by Jeff L. and Kyle M.
Within a week or two of the December 14, 2004 "Mr. Clean" poster incident, another student, Sabin E., gave an oral presentation in Mr. Reincke's history class. Sabin E. wrote the words "Dane is a fag" on one note card or on four note cards (it is undisputed that those four words were written in that order, regardless of how many cards were used) and made the words visible to the class, including Plaintiff. After class ended, Plaintiff reported the note card incident to Ms. Mansfield. Ms. Mansfield and Mr. Reincke promptly met with and verbally reprimanded Sabin E. Sabin E. apologized to Plaintiff, and Ms. Mansfield followed up with Plaintiff to ensure that there were no further problems with Sabin E. Plaintiff testified that he had no further problems with Sabin E.
The next month, in January 2005, Plaintiff entered the school one morning to find the inside and outside of his hall locker defaced with black permanent marker and paint. The defacement included the phrases "I like penis" and "man boobs" and a picture of a penis inserted into an anus. Plaintiff did not know who was responsible for defacing his hall locker, but he and/or David Patterson reported this incident to Tom Durbin, the assistant principal of Hudson High School ("AP Durbin") very shortly after Plaintiff saw his defaced locker. AP Durbin immediately had the locker cleaned by a custodian and conducted an investigation of the incident. AP Durbin's investigation included interviewing potential student witnesses, including those students who had lockers in the vicinity of Plaintiff's locker. The perpetrators responsible for this incident were never identified. A month later, in February 2005, someone spelled out "FAG" in shaving cream in large letters on Plaintiff's gym locker room while he was in gym class. Although this incident was reported to Defendant's administrators, the perpetrator was never identified.
In the spring of his ninth grade year, Plaintiff played on the Hudson High School junior varsity baseball team. The coach of the junior varsity baseball team was Plaintiff's brother, Andy Wade ("Mr. Wade"). In late May 2005, following a Friday afternoon practice, Plaintiff was assaulted in the boys locker room. One student, Nick H., blocked Plaintiff's exit from the locker room. Another student, Lance P., who was naked, climbed on top of Plaintiff. Lance P. proceeded to rub his penis and scrotum against the back of Plaintiff's neck and side of Plaintiff's face before the assault ended. Mr. Wade was not in the locker room when the assault occurred, and Plaintiff did not tell Mr. Wade (or any other person associated with Defendant) that the assault had occurred before Plaintiff went home with David Patterson. At home that Friday evening, Plaintiff told his parents about the assault. Plaintiff's parents then informed Mr. Wade of the incident later that same night. Plaintiff's parents told Mr. Wade not to contact anyone at Hudson High School about the incident because they did not want Mr. Wade to get involved. Neither Mr. Wade, Plaintiff nor his parents contacted any Hudson High School administrators or the police about the assault on that Friday, nor did Mr. Wade ever initiate any communication about the assault with Hudson High School administrators.
The next day, a Saturday, the junior varsity team had a scheduled doubleheader.
Plaintiff's parents filed a complaint against Lance P. with the Hudson Police Department two or three days later, and the Hudson Police Department conducted a criminal investigation which eventually resulted in Lance P. pleading guilty to a misdemeanor. Defendant's administrators cooperated with the Hudson Police Department with respect to its investigation, including sharing the results of Defendant's internal investigation. Prior to the commencement of classes in the fall of 2005, Lance P. was expelled from the Hudson Area Schools. Defendant denied Lance P.'s subsequent application for reentry into the Hudson Area Schools.
No evidence was introduced that any of Defendant's administrators had been notified, or had reason to believe, that Lance P. had engaged in any misconduct of a sexual nature prior to the locker room assault. Plaintiff testified that he had: (1) never had any problems with Lance P. prior to the locker room assault, and (2) no reason to think that Lance P. would assault him. Likewise, the junior varsity baseball team coach, Mr. Wade, who lived with Plaintiff and taught at Hudson Middle School during Plaintiff's ninth grade year, testified that he was not aware of any occasion when Lance P. had harassed Plaintiff prior to the locker room assault. Mr. Wade also testified that he had no reason to believe Lance P. would assault Plaintiff in the manner Lance P. did. Mr. Wade further testified that he did not believe Plaintiff was at risk of encountering danger, or that Plaintiff needed additional protection or attention, while in the locker room.
At some point soon after the incident, the varsity baseball coach, Mr. Beal, convened a team meeting of junior varsity and varsity players and commented (with Plaintiff present) that players should only joke with men who can take it.
After the locker room incident but prior to the commencement of Plaintiff's tenth grade year, Plaintiff's IEP was modified to allow him to receive off-site services at Sacred Heart School for his tenth grade year. Plaintiff and his parents testified that Plaintiff had a poor tenth grade year. As a result, Plaintiff's IEP was modified to allow him to take his eleventh grade and twelfth grade classes through college placement courses, which were paid for by Defendant. Plaintiff graduated from Hudson High School a year early, and he has taken some college courses, primarily online. Plaintiff and his parents testified that Plaintiff psychologically has been unable to enter, and has not entered, any Defendant building since the spring of 2005.
Judgment as a matter of law is appropriate where, after a party has been fully heard on an issue, there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue. Fed.R.Civ.P. 50(a); Hamad v. Woodcrest Condo. Ass'n, 328 F.3d 224, 236 (6th Cir.2003). When reviewing a motion for judgment as a matter of law based on insufficiency of the evidence, the court should not "weigh the evidence, evaluate the credibility of witnesses, or substitute its judgment for that of the jury." Arban v. West Publishing Corp., 345 F.3d 390, 400 (6th Cir.2003). Rather, the court "views the evidence in a light most favorable to the party against whom the motion is made and gives that party the benefit of all reasonable inferences." Id. The motion should be granted "only if a complete absence of proof exists on a material issue in the action, or if no disputed issue of fact exists upon which reasonable minds could differ." Karam v. Sagemark Consulting, Inc., 383 F.3d 421, 426-27 (6th Cir.2004) (quoting LaPerriere v. Int'l Union UAW, 348 F.3d 127, 132 (6th Cir.2003)). Judgment as a matter of law must be entered for the moving party, however, "if in viewing the evidence in the light most favorable to the non-moving party, there is no genuine issue of material fact for the jury, and reasonable minds could come to but one conclusion, in the favor of the moving party." Gray v. Toshiba Am. Consumer Prods., Inc., 263 F.3d 595, 598 (6th Cir. 2001).
Plaintiff alleges that Defendant violated Title IX of the Education Amendments of 1972 (hereafter "Title IX"), which provides, in relevant part:
20 U.S.C.A. § 1681(a) (emphasis added).
In Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 653, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999), the Supreme Court held that recipients of federal funds (such as Defendant) may be liable for damages under Title IX for student-on-student sexual harassment. In Davis, the Supreme Court established that Title IX may support a claim for student-on-student sexual harassment when the plaintiff can demonstrate the following elements:
Vance v. Spencer Cty. Pub. Sch., 231 F.3d 253, 258 (6th Cir.2000).
As Plaintiff notes in his response brief, the Court gave the jury the following instructions with respect to the first element of Plaintiff's claim:
In this case, Plaintiff testified that other students regularly called him "gay," "fag" and "queer" in sixth, seventh grade and ninth grade. Plaintiff further testified that, in seventh grade and ninth grade, students also called him "Mr. Clean" and directed comments at him such as "man boobs." There was no evidence introduced, however, that would allow a reasonable finder of fact to determine that those terms were based on Plaintiff's sex, sexual orientation or perceived sexual orientation.
First, Plaintiff testified that he is not gay, and no evidence was offered that any of the persons who harassed Plaintiff were gay. Second, no evidence was introduced that anyone perceived Plaintiff to be gay or that any of those persons who harassed Plaintiff were perceived to be gay. Third, no evidence was introduced that any of the harassment stemmed from, or that any of the persons who harassed Plaintiff had: (1) any sexual desire for Plaintiff, (2) a general hostility toward male students, or (3) treated female students differently/better than male students. See Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 80-81, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 765 (6th Cir.2006).
Fourth, no evidence was introduced that Plaintiff was called "gay," "fag," "queer," "Mr. Clean" or "man boobs" because of Plaintiff's sex, sexual orientation or perceived sexual orientation. To the contrary, Plaintiff and his parents testified that the "man boobs" comments began after Plaintiff gained about 40 pounds between the latter part of Plaintiff's sixth grade year and the beginning of his seventh grade year. Such teasing is not sufficient to establish a Title IX claim. See Davis, 526 U.S. at 652, 119 S.Ct. 1661:
As to the "Mr. Clean" teasing, although Plaintiff testified that he understood it to be a reference to a lack of pubic hair, no other witness testified that anyone who called Plaintiff "Mr. Clean" or put up a "Mr. Clean" poster intended to connote that meaning. In fact, Plaintiff did not even indicate that someone had communicated such a meaning to him. Likewise, Ryan Hobbs ("Mr. Hobbs"), a former Hudson Area Schools student called as a witness by Plaintiff testified that: (1) he had used the terms "gay," "fag" and "queer" while he attended the Hudson Area Schools, (2) he did not consider any of those words to be sexually discriminatory or sexually harassing, and (3) he did not use those terms in a sexual way. Even the two "school-related" witnesses called by Plaintiff, Glen Stutzky ("Mr. Stutzky") and Angela Johnston ("Ms. Johnston"), testified that school-aged children often use words such words as "gay," "fag" and "queer" without understanding their meanings or that those words can be hurtful. Mr. Stutzky and Ms. Johnston, as well as many other witnesses, also testified that school-aged children often use those words as part of their vernacular to describe a variety of things or people, in a nonsexual manner. No witness testified, and no evidence was introduced, that any person who called Plaintiff those names intended them in a sexual manner.
Aside from the verbal name calling described above and the locker room assault discussed below, there were few other incidents to which Plaintiff was subjected. In seventh grade, there was one such incident, which did not involve student-on-student harassment; that is, when Mr. Redding made fun of Plaintiff in class by stating something to the effect of "Patterson, how does it feel to be hit by a girl?" In December of his ninth grade year, several incidents occurred within days of each other: Plaintiff's planner was defaced with sexually explicit terms and drawings, a "Mr. Clean" poster was taped to Plaintiff's locker and the note card incident in history class (another reference to Plaintiff being a "fag"). In January, unidentified persons put words such as "gay," "fag" and "queer," as well as a pictorial display of a penis being inserted into a rectum, on the outside of his locker, and the inside of his locker was vandalized with sexual comments. In February, someone wrote "FAG" with shaving cream on his gym locker. Finally, there were the comments made by Mr. Beal, the varsity baseball coach, about only playing a joke on someone who can take it (again, this did not involve student-on-student harassment).
Many of these "acts" simply constituted another form of name calling (i.e., "gay," "fag," "queer" and "Mr. Clean" in a written form is no different from a verbal occurrence). Thus, there were but four incidents (the planner, some of the locker defacement, the comments of Mr. Redding and the comments of Mr. Beal) which arguably included sex-based content. Significantly, however, as noted above and as the jury was instructed:
Lance P.'s assault of Plaintiff clearly constituted an offensive, sexual touching. As with the other instances in this case, however, there was no evidence offered that the actions of Lance P. were based upon the gender, sexual orientation or perceived sexual orientation of Plaintiff-or Lance P., for that matter. Rather, while the evidence demonstrated that Lance P.'s actions were unbelievably stupid, cruel and hurtful to Plaintiff, there was no evidence presented that Lance P.: (1) acted out of sexual desire for Plaintiff, (2) had any general hostility toward males, or (3) treated males differently than females. The Court in no way condones the behavior of Lance P., but the Court concludes that Lance P.'s conduct did not constitute discrimination or harassment on the basis of sex for which Title IX provides a legal remedy.
Although the Court finds the harassment in this case deplorable and is sympathetic to students who are subjected to such behavior, the harassment directed at Plaintiff was typical of middle school and high school behavior. As stated by the U.S. Supreme Court:
Davis, 526 U.S. at 651-52, 119 S.Ct. 1661 (emphasis added).
In furtherance of this theme, Plaintiff response brief identifies some of the trial testimony of Mr. Hobbs and Dr. Warwick:
In fact, Mr. Hobbs also testified that Plaintiff was teased because Plaintiff participated in socially unpopular activities, such as Science Olympiad, rather than football or wrestling. As Plaintiff's arguments and the testimony of Mr. Hobbs and Dr. Warwick, among others, exemplify, the basis of Plaintiff's case (and the harassment to which he was subjected) really is the byproduct of the social status or structure in schools. For good or bad, in the Hudson Area Schools, like many schools, that means the successful athletes (jocks) are at the top level of social status structure and the scholars are at a lower social status level. Title IX does not, however, protect students against being teased or harassed because of their social status; it only protects against harassment or discrimination on the basis of sex.
For the reasons set forth above, the Court concludes that the harassment to which Plaintiff was subjected in sixth, seventh and ninth grade constituted bullying, not sexual harassment. As Title IX protects only harassment or discrimination based on sex, the Court finds that Plaintiff's cause of action must be dismissed as a matter of law.
Assuming, for purposes of this section of this Opinion and Order only, the other elements of Plaintiff's Title IX claim have been satisfied, the Court finds that, as a matter of law, Defendant was not deliberately indifferent.
A federal assistance "recipient is liable for damages only where the recipient itself intentionally acted in clear violation of Title IX by remaining deliberately indifferent to known acts of harassment." Vance, 231 F.3d at 259-60 (citing Davis, 526 U.S. at 642, 119 S.Ct. 1661). More specifically, "the Supreme Court stated that a plaintiff may demonstrate defendant's deliberate indifference `only where the recipient's response to the harassment or lack thereof is clearly unreasonable in light of the known circumstances.'" Vance, 231 F.3d at 260 (quoting Davis, 526 U.S. at 648, 119 S.Ct. 1661). The Vance court continued:
Vance, 231 F.3d at 260. The instant case presents exactly the kind of case where it is appropriate for a court to grant a motion for judgment as a matter of law because Defendant's response was not "clearly unreasonable" (i.e., deliberately indifferent) as a matter of law.
When discrimination such as sexual harassment has been determined to occur, the responsible party has a duty to take reasonable, timely, age appropriate and effective corrective action. See Gebser v. Lago Vista Ind. Sch. Dist., 524 U.S. 274, 288, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998). As the Court instructed the jury in this case:
Relying on and quoting from Davis, 526 U.S. at 648-49, 119 S.Ct. 1661; Paint Valley, 400 F.3d at 367; Vance, 231 F.3d at 260, 261, 263-64.
In the instant case, the Court finds that the uncontroverted evidence is that Defendant's teachers and administrators responded to each and every incident of harassment of which they had notice. More critically, the Court concludes that, as a matter of law, there was no evidence whatsoever presented that Defendant "was aware that adverse consequences from its action or inaction were certain or substantially certain to cause harm ... and that Defendant decided to act or not act in spite of that knowledge." Vance, 231 F.3d at 263-64. In other words, the Court finds, as a matter of law, that Defendant "responde[d] to known peer harassment in a manner that [was] not clearly unreasonable." Davis, 526 U.S. at 649, 119 S.Ct. 1661.
First, the undisputed testimony was that Ms. Mansfield initiated the process to qualify Plaintiff for resource room consideration after hearing complaints from and having discussions with Dena Patterson regarding Plaintiff's struggles in seventh grade at Hudson Middle School. The evidence also uniformly established that Defendant's employees (Ms. Mansfield, Ms. Cates and Mr. Moeckel) put in time over their summer vacations to evaluate Plaintiff's eligibility for resource room services so that Plaintiff could be assigned to a resource room from the first day of his eighth grade year. Second, the witnesses consistently testified that, in Plaintiff's eighth grade year, he was not subjected to harassment of the nature he had been in sixth and seventh grade.
Third, the witness uniformly attributed Plaintiff's successful eighth grade year to Plaintiff's assignment to Mr. Adams' resource room, an assignment that resulted from efforts initiated by Defendant's employees. As Plaintiff and his parents testified that the harassment to which Plaintiff was subjected in sixth and seventh grade
With respect to the harassment in ninth grade about which Plaintiff and/or his parents complained to Defendant's administrators, the undisputed testimony was that:
As is clear from the foregoing, the undisputed responses by Defendant (some of which are set forth in greater detail in Section II) were prompt and effective. On the one occasion that a student harassed Plaintiff following the initial form of discipline, Defendant increased the punishment from a verbal reprimand to a suspension. This form of graduated punishment, one typically used in a school setting (as well as in the criminal justice arena), proved effective.
Fourth, prior to the time Plaintiff completed his ninth grade year, Defendant hosted or maintained a number of programs which, according to Mr. Stutzky, addressed, at least in part, sexual harassment: the "Flirting and Hurting Program" initiated by Ms. Mansfield, "Bang, Bang, You're Dead," "Positive Peers" and "Concerned About Teen Sexuality." Fifth, beginning in 2000, a student conduct component was added to the Health class curriculum, and this component specifically addressed issues of sexual harassment.
Sixth, while Plaintiff attended Hudson Area Schools, Defendant had specific policies regarding hallway, lunchroom, and locker room supervision. These policies require supervision at all times by teachers and administrators based on shifts. School district administrators and teachers were advised of, and trained on, the above policies. During in-service training sessions held at the beginning of the school year, the Hudson Middle School and Hudson High School staff were provided with copies of Defendant's policies regarding student conduct and spent time discussing appropriate student conduct, including what sexual harassment means.
The Court now turns to what appeared to be a, if not the, key reason this case was remanded to this Court for trial: the Sixth Circuit's belief that the evidence, taken in a light most favorable to Plaintiff, demonstrated that resource room services were not available to Plaintiff during his ninth grade year.
Moreover, the undisputed testimony is that
Although the ninth grade IEP may not have been exactly what Plaintiff (or his parents) desired, and while Defendant's actions may not have yielded the results Plaintiff (or his parents) hoped for, applicable law provides that Plaintiff (and his parents) did not "have a Title IX right to make particular remedial demands." See Davis, 526 U.S. at 648, 119 S.Ct. 1661. Likewise, the law is well-established that "courts should refrain from second-guessing the disciplinary decisions made by school administrators." Davis, 526 U.S. at 648, 119 S.Ct. 1661 (citing New Jersey v. T.L.O., 469 U.S. 325, 342 n. 9, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985)). Thus, this Court must adhere to the standard of review set forth by the Davis Court, i.e., the Court simply is to determine whether Defendant acted "clearly unreasonable in light of known circumstances." Vance, 231 F.3d at 260 (quoting Davis, 526 U.S. at 648, 119 S.Ct. 1661). Based on the undisputed responses of Defendant's administrators to reported incidents of harassment, as well as the implementation of an eighth grade IEP and the efforts to create and implement an IEP satisfactory to Plaintiff (and his parents) for the ninth grade year, the Court finds, as a matter of law, that Defendant did not act clearly unreasonably or with deliberate indifference to the known acts of harassment directed
For the foregoing reasons, the Court holds that Defendant was not deliberately indifferent to the alleged sexual harassment against Plaintiff because Defendant's actions were not clearly unreasonable in light of known circumstances. Accordingly, the Court concludes that Plaintiff's Title IX claim fails as a matter of law, and therefore GRANTS Defendant's JMOL Motion, on this basis as well.
Pursuant to Rule 50(c) of the Federal Rules of Civil Procedure, the Court must conditionally rule on Defendant's Rule 59 motion for new trial in the event the Court's grant of Defendant's JMOL Motion is vacated or reversed. A new trial is warranted under Rule 59(a) when a jury has reached a "seriously erroneous result," as evidenced by the verdict being against the great weight of the evidence. Ward & Co. v. Duncan, 311 U.S. 243, 251, 61 S.Ct. 189, 85 L.Ed. 147 (1940). As the Sixth Circuit has stated:
Bruner v. Dunaway, 684 F.2d 422, 425 (6th Cir.1982) (citations omitted).
For the reasons set forth above, the Court concludes that the jury verdict was against the great weight of the evidence. More specifically, the Court finds that the great weight of the evidence did not support a finding that: (1) Plaintiff was subjected to harassment based on sex; (2) even if the harassment was based on sex, it was severe, pervasive, and objectively offensive; or (3) Defendant was deliberately indifferent to the harassment. The Court therefore concludes that the jury verdict in favor of Plaintiff on his Title IX claim should be set aside. Accordingly, should the Court's grant of Defendant's JMOL Motion be vacated or reversed, the Court grants Defendant's alternative motion for a new trial.
Accordingly, and for the reasons set forth above, IT IS HEREBY ORDERED that Defendant's Motion for Judgment as a
Concurrent with the issuance of this Opinion and Order, the Court is entering an Order to Strike the Judgment entered by this Court on March 30, 2010. A new Judgment dismissing Plaintiff's cause of action shall be entered accordingly.
IT IS SO ORDERED.
Patterson, 551 F.3d at 448-49 (emphasis added).
