Robert WARREN, a Minor, by and through Lori A. GOOD, his Parent and Natural Guardian, v. READING SCHOOL DISTRICT; Geraldina Sepulveda, in her Individual and Official Capacity as Principal of the 10th and Green Elementary School; James A. Goodhart, in his Individual and Official Capacity as Superintendent of the Reading School District, Reading School District, Appellant.
No. 00-1148.
United States Court of Appeals, Third Circuit.
Argued Dec. 4, 2000. Opinion Filed Jan. 23, 2002.
278 F.3d 163
CONCLUSION
Fernandez-Antonia suffered no prejudice as a result of any procedural flaws in his removal proceeding. He thus cannot successfully collaterally challenge the use of his removal as an element of a crime. In addition, the district court did not err in upwardly adjusting Fernandez-Antonia‘s offense level for his conviction of an aggravated felony. This decision of the district court was well supported by New York case law.
The judgment of the district court is affirmed.
David R. Dautrich (Argued), Reading, PA, Attorney for Appellee.
Frederick B. Buck, III (Argued), Rawle & Henderson, Philadelphia, PA, Attorney for Appellant.
Before McKEE, ROSENN and CUDAHY,* Circuit Judges.
OPINION OF THE COURT
Lori Good brought this action on behalf of her minor son, Robert Warren, seeking damages under Title IX for sexual abuse he received at the hands of his fourth
I. FACTUAL BACKGROUND
In April 1995, Robert Warren transferred into the Reading School District‘s Tenth and Green Elementary School where he was assigned to Harold Brown‘s fourth grade class. At some point after Robert‘s transfer, Robert remained after school at Brown‘s request. While Robert remained in the classroom, Brown locked the classroom door, and asked Robert to play a “game” that Brown called “shoulders.” This consisted of Robert squatting with his head between Brown‘s legs and placing his shоulders under Brown‘s thighs. Robert would then lift Brown‘s upper body from this squatting position as Brown leaned forward. As Robert lifted, Brown‘s genitals touched the back of Robert‘s head and neck. Brown challenged Robert to squat and lift as many times as he could and Brown “rewarded” Robert with candy or money when the “game” was over. Brown apparently repeated this routine two or three times per week during the school year. On at least one occasion during the following summer, Brown also drove by Robert‘s house in order to pick Robert up and take him to a “secret spot” near the woods where they again played “shoulders.”
In early November 1995, Lori Good discovered her son‘s journal and read an entry in which Robert described playing “shoulders” with Brоwn at a secret spot. Good immediately became concerned and spoke to Robert about the entry. After that discussion, Good reported Brown‘s conduct to the Berks County Children and Youth Services. That agency reported Brown‘s suspected abuse to the school district, and Brown was suspended, and ultimately resigned his position.1
A short time later, Good initiated a civil rights action under
The district court granted summary judgment in favor of the defendants and against Robert on all claims except the Title IX claim against the school district and the
Carlos Mercado testified at trial for the plaintiff. Mercado‘s son had been a student at Tenth and Green Elementary School in the early 1990s. Mercado testified that he went to that school sometime
Q: And what did you say to the principal that day, Mr. Mercado?
A: I told her that I wanted to talk to her about Mr. Brоwn taking my kid to his house, that there‘s no reason for him to take him to his house and give him money to lift him up and down. She told me that she was too busy to listen to me at that time. She told me to talk to Mr. Vecchio [the guidance counselor].
* * *
Q: Did you talk to Mr. Vecchio?
A: Yes.... I told him—she told me to go to him, so I went to him. He said what was the problem. I told him that I wanted to talk to him about Mr. Brown taking my kid to his house and lifting him up and down and giving him money. There was no reason for that.
Q: Mrs. Sepulveda, did she stay at the office?
A: No, she walked out.
Appendix at 129-30.
Mercado testified that Vecchio said he was going to talk to Brown and “get back to me,” but Mercado never heard anything further from Vecchio, Sepulveda, or anyone else at the school. According to Mercado, Sepulveda appeared to be in a hurry, and upset about something when he tried to sрeak to her. He testified: “I couldn‘t describe it to the lady because she was too much in a hurry. She was going out.” Id. at 139-40. Vecchio and Sepulveda also testified, but they both denied having any such conversation with Mercado.
Plaintiff also introduced the testimony of Dr. Susan Kraus, an expert in psychology and sexual abuse of children. She testified that the “shoulders” game that Robert described was actually a masturbatory exercise engaged in for sexual gratification. According to her testimony, “games” such as this are nothing more than sexual activity. They did not constitute anything that could be regarded as “horseplay.”
Dr. Chester Kent also testified for plaintiff over the defendants’ objection. Kent was an expert in the field of school policy, procedure and administration, with a subspecialty in cases involving molestation or abuse of children. He opined that Dr. Sepulveda‘s internal policies for student safety were highly deficient and not conducive to protecting the health, safety, or welfare of the students at the school. App. 231, 239, 243, 250-1. He also surmised that, given the number of children that had been victimized by Brown, the level of activity in Brown‘s classroom should have aroused suspicion. He added that Sepulveda was complacent and her approach to protecting the welfare of the children at her school conveyed that complacency to the teachers she was responsible for supervising. According to him, thosе teachers “were certainly incapable of recognizing the signs that they should have recognized when something was not right regarding molestation of students.” App. 250-1. Kent concluded that Sepulveda‘s attitude evidenced deliberate indifference as exemplified by her response to the Mercado complaint. Id. He testified:
throughout [Sepulveda‘s] tenure, beginning with the Mercado incident, she basically conducted no investigations of any type to determine if there was a legitimate complaint involved. This becomes very, very important because one could always say, I‘ve turned it over to the police or I turned it over to Children and Youth Services, but the police standard is much higher.... School Districts are required to conduct an investi-
gation to determine whether or not a person is fit to be a teacher. None of that has ever gone on under her leadership in the building
App. 251-2. Later in his testimony, Dr. Kent told the jury that Dr. Sepulveda‘s attitude “really served to create a hostile environment in the building where young boys ... became prey of a teacher who was bent on molesting them and this was happening right under the nose of the principal.” App. 257.
Plaintiff also introduced two “supervisory conference” memoranda over defense objection. The first memorandum, dated 1969, was a two-page evaluation of Brown that had been prepared years before he came to Robert‘s school. The memorandum summarized the confеrence Brown apparently had with a supervisor back in 1969. It stated in part: “[w]e also discussed his preparation for graduate school—children in his class—and his involvement with children after school hours.” Warren v. Reading School Dist., 82 F.Supp.2d 395, 398 (E.D.Pa.2000). The memorandum was in Brown‘s personnel file in the School District Administration Building, but there was no evidence that Sepulveda, or anyone else at Robert‘s school ever saw it or knew it existed.
The second memorandum was a supervisory conference memorandum that Sepulveda prepared in 1995. It stated in part: “it has been brought to my attention that the games you play with the students in the classroom involve physical contact. For the best interest of all concerned, this situation must ‘stop‘.” Id. Sepulveda explained that this sеcond memorandum referred to a parent‘s complaint that inappropriate “horseplay” was occurring in Brown‘s classroom during recess and not inappropriate sexual or physical contact.
At the close of plaintiff‘s case, the school district moved for judgment as a matter of law under
The school district filed timely motions for judgment as a matter or law, or in the alternative, for a new trial, under
The school district raises several claims of error. However, we will limit our discussion to the district‘s claim that the court erred in not instructing the jury that Vecchio could not be considered “an appropriate person” under Title IX. Inasmuch as we conclude that the school district is entitled to a new trial on that basis, the
II. JURISDICTION AND STANDARD OF REVIEW
The district court had subject matter jurisdiction over plaintiff‘s federal claims pursuant to
III. DISCUSSION
A. LIABILITY UNDER TITLE IX, 20 U.S.C. § 1681 et seq.
Title IX of the Education Amendments of 1972 provides in pertinent part:
No person ... shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.
Gebser concerned an implied private cause of action for damages resulting from sexual harassment of a student by a teacher. Waldrop, who was the teacher, began making “sexually suggestive comments to students,” and eventually initiated sexual contact with the minor plaintiff while visiting her home “ostensibly to give her a book” while her parents were away. Id. at 277-78, 118 S.Ct. 1989. Waldrop‘s advances escalated to a sexual relationship which he maintained with the plaintiff student who was assigned to his classroom.
Gebser never reported Waldrop‘s conduct. Parents of two other students did complain to the high school principal. However, those parents only knew of Waldrop‘s improper class room comments, and
Waldrop‘s relationship with Gebser was discovered а couple of months later when police encountered them having sexual intercourse. They arrested Waldrop, and the school district immediately terminated him. Thereafter, Gebser‘s parents brought an action against the school district that included a claim under Title IX, and
On appeal, the Supreme Court was asked to decide “when a school district may be held liable in damages in an implied right of action under Title IX.” 524 U.S. at 277, 118 S.Ct. 1989. The Court rejected employer liability based upon principles of agency that apply in suits for sexual harassment under Title VII. The Court reasoned that “it would frustrate the purposе of Title IX to permit monetary damages for a teacher‘s sexual harassment of a student based on principles of respondeat superior or constructive notice.” Gebser, 524 U.S. at 285, 118 S.Ct. 1989, citing Franklin, 503 U.S. at 71, 112 S.Ct. 1028. Instead, the Court concluded that Title IX‘s “express remedial scheme is predicated upon notice to an appropriate person and an opportunity to rectify any violation.” Gebser, 524 U.S. at 290, 118 S.Ct. 1989 (internal quotation marks omitted).
The Court explained that liability in damages could not attach under Title IX unless an “appropriate person” had actual notice of the conduct that liability is premised upon, and explained that:
[a]n “appropriate person” under [Title IX] is, at a minimum, an official of the recipient entity with authority to take corrective аction to end the discrimination. Consequently, in cases like this one that do not involve official policy of the recipient entity, we hold that a damages remedy will not lie under Title IX unless an official who at a minimum has authority to address the alleged discrimination and to institute corrective measures on the recipient‘s behalf has actual knowledge of discrimination in the recipient‘s programs and fails adequately to respond.
Gebser, 524 U.S. at 290, 118 S.Ct. 1989.
Although the Court did not explicitly state whether a school principal can be an “official” or “appropriate person” under
[t]he only official alleged to have had information about Waldrop‘s misconduct is the high school principal. That information, however, consisted of a complaint from parents of other students charging only that Waldrop had made inappropriate comments during class, which was plainly insufficient to alert the principal to the possibility that Waldrop was involved in a sexual relationship with a student.
524 U.S. at 291, 118 S.Ct. 1989. The Court‘s analysis suggested the possibility that the principal could be “an appropriate person” under Title IX if plaintiff could establish the principаl actually knew about the conduct and was deliberately indifferent towards it.
The Court‘s analysis in Gebser rested upon the supposition that a principal is usually high enough up the bureaucratic ladder to justify basing Title IX liability on his or her actual knowledge and deliberate indifference. If a principal is not an “appropriate person” for purposes of Title IX, a substantial portion of the Supreme Court‘s analysis in Gebser was nothing more than a meaningless discussion. See also Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999) (holding that principal‘s actual knowledge and failure to respond would support liability under Title IX); and Murrell v. School Dist. No. 1, Denver, Colo., 186 F.3d 1238, 1247 (10th Cir.1999) (“We find little room to doubt that the highest-ranking administrator [at the school] exercised substantial control of Mr. Doe and the school environment during school hours, and so her knowledge may be charged to the School District.“).
Moreоver, the practical result of holding that a principal is not an “appropriate person” would require a plaintiff to prove that members of the school‘s governing body, perhaps even a voting majority of those members, knew of the improper conduct. That would undermine the private cause of action under Title IX that the Court found in Cannon, and eliminate the protection Congress intended for students in schools receiving Title IX funds.
In concluding that the private cause of action under Title IX was not identical to the cause of action under Title VII, the Court in Gebser stressed the different purposes of those two statutes. The explicit cause of action in Title VII is intended to punish acts of discrimination, whereas the cause of action in Title IX is intended as protection for the student. See Gebser, 524 U.S. at 287, 118 S.Ct. 1989 (“Title IX focuses more on ‘protecting’ individuals from discriminatory practices carried out by recipients of federal funds.“). The Court was therefore concerned that an implied right of private action not interfere with the opportunities for voluntary compliance built into the statutory scheme of Title IX, and administrative remedies that Congress included in the statutory scheme. Holding a school district responsible for actions of a principal fixes responsibility at sufficiently high level to afford the recipient of Title IX funds an opportunity to respond to claims of discrimination before funds are jeopardized by a teacher‘s conduct. It also аffords an opportunity for voluntary compliance with the contractual undertakings that are part of Title IX funding. Gebser, 524 U.S. at 288, 118 S.Ct. 1989. (“Presumably, a central pur-
The Supreme Court in Gebser recognized the practical problems confronting plaintiffs attempting to establish a valid claim under Title IX, as well as the increasing difficulty of providing educational benefits in the face of growing claims of sexual hаrassment. The Court noted:
The number of reported cases involving sexual harassment of students in schools confirms that harassment unfortunately is an all too common aspect of the educational experience. No one questions that a student suffers extraordinary harm when subjected to sexual harassment and abuse by a teacher, and that the teacher‘s conduct is reprehensible and undermines the basic purposes of the educational system. The issue in this case, however, is whether the independent misconduct of a teacher is attributable to the school district that employs him under a specific federal statute designed primarily to prevent recipients of federal financial assistance from using the funds in a discriminatory manner.... [W]e will not hold a school district liable in damages under Title IX for a teacher‘s sexual harassment of a student absent actual notice and deliberate indifference....
524 U.S. at 292, 118 S.Ct. 1989.
The school district argues that since Gebser did not specifically “identify by job title those officials whose actual knowledge of a teacher‘s misconduct may be imputed to the school district,” there remains an incomplete and vague standard as to who may qualify as an “appropriate person,” and the question remains subject to interpretation. Appellants’ Br. at 26. We disagree. For the reasons we have just discussed, we think that a school principal who is entrusted with the responsibility and authority normally associated with that position will ordinarily be “an appropriate person” under Title IX.3
Having reached that conclusion, however, we must still determine if the evidence here was sufficient to allow a reasonable jury to conclude that “an appropriate person” had actual knowledge of Brown‘s abuse of Robert. If we conclude that it was, we must then determine if the evidence allowed the jury to conclude that the “appropriate person” exhibited the deliberate indifference necessary to liability under Title IX.
B. PLAINTIFF ESTABLISHED ACTUAL KNOWLEDGE OF “AN APPROPRIATE PERSON.”
Plaintiff attempted to prove that both Sepulveda and Vecchio knew of Brown‘s conduct and the district court accepted the argument that each was “an appropriate person” under Title IX. On appeal, the
The district court concluded that Sepulveda was “an appropriate person” and that she transferred her authority to Vecchio. The court also concluded that even if Vecchio was not “an appropriate person,” plaintiff is not entitled to a new trial because the weight of the evidence established liability based only upon Sepulveda‘s authority. Warren v. Reading School Dist., 82 F.Supp.2d 395, 401 (E.D.Pa.2000). Although we agree that the evidence was sufficient to allow a reasonable jury to conclude that Sepulveda was “an appropriate person” under Title IX, we do not agree that Vecchio was, or that Sepulveda somehow transferred her authority to Vecchio.
Dr. Sepulveda testified that she had a doctorate degree in education administration and supervision. App. 414. She also testified that, as principal, she was in charge of every aspect of the daily operations of the Tenth and Green Elementary School, including supervision and discipline of the teachers at the school. Id. at 414-17. She was responsible for the health, safety, and welfare of the students at her school. Id. She testified that she enacted, oversaw, and administered numerous school programs including the latch-key program, migrant program, detention program, homework program, and dismissal program. Id. She had alsо been responsible for planning agendas for faculty-wide meetings during which she instructed teachers on various district policies including sexual harassment. Her duties included administrative responsibility for educating teachers about sexual harassment policies. Id. at 426-28, 442.
Her responsibilities for supervising teachers obviously included the kind of reprimand contained in the supervisory conference note mentioned above wherein she rebuked Harold Brown for his activities with children. As noted above, that note stated in part: “it has been brought to my attention that games that you play with students in the classroom involve physical contact. For the best interest of all concerned, this situation must ‘stop‘.” App. 249 (emphasis added).
Moreover, Dr. Kеnt‘s testimony stressed the importance of the wording of that note. He believed it was very uncommon for a principal to write such a pointed note and place it in a personnel file. Kent opined that it meant that Sepulveda was trying to “send a very strong message. They did not want this behavior to continue.” App. 250. The date of this note, October 24, 1995, is after Brown‘s last contact with Robert, and only 10 days before Brown was suspended. Therefore, it did not conclusively establish Sepulveda‘s knowledge of Brown‘s conduct. Moreover, Sepulveda explained that the note was written in response to parental complaints about “horseplay” in Brown‘s room during recess, and not about the “shoulders” activity, or anything like it. See Warren v. Reading School Dist., 82 F.Supp.2d at 398. Assuming аrguendo that the jury accepted that explanation, the note is still highly probative of Sepulveda‘s authority in the school.4 It certainly corroborated the plaintiff‘s contention that she was “an appropriate person” with “authority to institute corrective measures on the district‘s behalf.” Gebser, 524 U.S. at 277, 118 S.Ct. 1989.
We also agree that the evidence would support a finding that Sepulveda knew of Brown‘s conduct and was deliberately indifferent to it. Mercado‘s testimony alone would support a jury finding that Sepulveda had been told that a teachеr in her elementary school was taking a student to that teacher‘s home, and paying the student to engage in physical activity consisting of “lifting up and down.” She responded by telling Mercado that she was “too busy” to listen to this parent‘s complaint, or act upon it. She referred Mercado to Vecchio, a guidance counselor. The jury could find deliberate indifference from that testimony alone, even absent Kent‘s expert assessment of it.5
However, as noted above, plaintiff also argues that the evidence would allow the jury to conclude that Vecchio was “an appropriate person” as well. Vecchio testified that his job involved dealing with children who have behavioral as well as aсademic problems, and referrals to networks of agencies that provide assistance to children and families. App. 401. He also handled referrals for abuse, and assumed the role of principal when Sepulveda was not in the building. However, when Mercado visited Tenth and Green Elementary School to complain about Brown‘s conduct Sepulveda was present. Nothing suggests that Vecchio was acting as principal then except for the argument that arises from Sepulveda referring Mercado to Vecchio because she was “too busy” to listen. That is not sufficient on this record to visit liability upon the school district. Although a principal can be “an appropriate person,” there is clearly insufficient evidence on this record to allow a jury to conclude that Vecchio was cloaked with sufficient authority to be a “responsible person” during any time relevant here.
The case was submitted to the jury under a theory that allowed it to find that either Sepulveda or Vecchio was “an appropriate person.” Moreover, during jury deliberations, the jury asked whether the guidance counselor was “an appropriate person.” The court rejected the school district‘s request that the jury be instructed that Vecchio was not “an appropriate person” as a matter of law. Rather, the court concluded that Vecchio‘s status under Gebser was a fact question, and instructed the jury that it shоuld make its own determination based upon the evi-
The court‘s response to the jury allowed the jury to return a verdict for plaintiff based upon Vecchio‘s knowledge and deliberate indifference rather than Sepulveda‘s. However, the district court‘s own opinion strongly suggests that the court did not believe that the plaintiff‘s Title IX claim could be based upon Vecchio‘s knowledge and indifference. The court‘s entire discussion of the jury‘s concern with Vecchio being “an appropriate person” is as follows:
Defendant next argues that the Court erred when it declined to instruct the jury that Mr. Vecchio, a guidance cоunselor, was not an “official” of the Reading School District within the meaning of Gebser. The Court does not agree with Defendant that it is clear that Mr. Vecchio was not an appropriate official under Gebser when the principal, Dr. Sepulveda, had transferred her authority to Mr. Vecchio. But more importantly, even if Mr. Vecchio were not an appropriate official under Gebser, for the reasons discussed in Section One (I) above the jury‘s verdict would not be “contrary to the great weight of the evidence,” nor would the jury‘s verdict “produce a result inconsistent with substantial justice.” Therefore, Defendant‘s request for a new trial on this basis is denied.
82 F.Supp.2d at 401 (internal citations omitted).6 The court is careful to note that the school district could be liable based upon Vecchio‘s knowledge “when the principal ... had transferred her authority to” him. Besides, such authority could not have been transferred to Vecchio without school district approval, and there is none here. However, as we have already noted, this record does not support a finding that such authority was transferred (insofar as Title IX‘s “appropriate person” limitation is concerned) at any time relevant to this complaint. Sepulveda merely referred a complaint, she did not delegate authority or responsibility. Accordingly, we conclude that the district court erred in failing to instruct the jury that Vecchio could not be “an appropriate person” on this record.
Inasmuch as the jury‘s verdict slip dоes not allow us to determine if the verdict was based upon Vecchio‘s actual knowledge and deliberate indifference, or Sepulveda‘s actual knowledge and deliberate indifference, we must remand for a new trial on plaintiff‘s Title IX claim as the school district has requested in the alternative.7
For the above reasons, we will affirm the district court‘s denial of the defendants’ motion for judgment as a matter of law, but we will reverse the district court‘s denial of the defendants’ motion for a new trial and remand this matter to the district court for further proceedings consistent with this opinion.8
McKEE
CIRCUIT JUDGE