Pamela Campbell v. Dundee Community Schools, et al

Filing

OPINION filed: The judgment of the district court is AFFIRMED, decision not for publication. Gilbert S. Merritt (authoring), John M. Rogers, and Raymond M. Kethledge, Circuit Judges.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 16a0568n.06
Case No. 15-1891
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

FILED
PAMELA CAMPBELL, Individually and as
next friend of JANE DOE, a minor
Plaintiff-Appellant,
v.
DUNDEE COMMUNITY SCHOOLS; WEST
EDUCATIONAL LEASING; FREDERICK
AARON CARNER; BRUCE NELSON

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Oct 13, 2016
DEBORAH S. HUNT, Clerk
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF
MICHIGAN

Defendants-Appellees.
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Before: MERRITT, ROGERS, and KETHLEDGE, Circuit Judges.
MERRITT, Circuit Judge. This case on appeal is brought by plaintiff-appellant Pamela
Campbell, the mother of a middle school student who was the victim of repeated sexual abuse by
Richard Alan Neff, her school basketball coach. The student, “Jane Doe,” became involved in a
relationship with Neff beginning in the summer of 2009 and ending on April 23, 2010, when a
school janitor discovered Doe and Neff engaging in a sex act. The plaintiff filed suit, raising
claims against Dundee Community Schools, West Educational Leasing, Inc. (d/b/a “Professional
Contract Management, Inc.” or “PCMI”), Athletic Director Fredrick Aaron Carner, and
Superintendent Bruce Nelson under Title IX, 42 U.S.C. § 1983, and Michigan state law. The

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United States District Court for the Eastern District of Michigan granted the defendants’ motions
for summary judgment on the Title IX, 42 U.S.C. § 1983, and various state law claims. The rest
of the plaintiff’s state law claims were dismissed without prejudice. On appeal, the plaintiff
argues that the district court erred in dismissing the Title IX and 42 U.S.C. § 1983 claims.1
The district court correctly dismissed the claims. No reasonable jury could return a
verdict for the plaintiff on either. We AFFIRM the district court’s grants of summary judgment
to the defendants.
I. Factual Background and Procedural Posture
Jane Doe attended Dundee Middle School as a seventh and eighth grade student during
the 2008-09 and 2009-10 school years. Doe was a member of the girls’ basketball team during
both years. From 2001 to 2010, the girls’ team was coached by Richard Neff, who by 2010 was
47 years old. Doe’s father, Chris Campbell, was an assistant coach during the two years that Doe
was on the team. He was in a position to observe the behavior between his daughter and Neff,
but did not report or suspect an improper relationship.
At the beginning of Doe’s seventh grade season in January 2009, Neff began texting Doe
and other girls on the team. Initially, Neff’s texts to Doe reflected a typical “student/coach
relationship.” But by the summer of 2009, Neff’s texts to Doe became “excessive” and involved
topics unrelated to basketball or school. Neff began calling Doe regularly, and at the end of
June, Neff secretly kissed Doe on the cheek while he visited Doe’s home to watch a hockey
game with Doe’s father.

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The plaintiff also appealed the district court dismissal of two of her state law claims: (1) negligent hiring as to
West Educational Leasing (i.e. PCMI) and (2) violation of Michigan’s Child Protection Law as to Dundee
Community Schools, Nelson, and Carner. M.C.L. § 722.621. The plaintiff does not raise these claims in her brief,
and they are waived. Even if they were not waived, this Court agrees with the district court that the claims were
properly dismissed on the merits.

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Neff secretly began a sexual relationship with Doe during the fall of 2009. Neff would
covertly visit Doe’s family’s property around 6:30 a.m., and Doe would sneak out of the house to
visit Neff in his car. During these encounters, Neff would hug, touch, and kiss Doe. Neff’s texts
and phone calls to Doe also became sexual in nature.
West Educational Leasing, Inc., doing business as Professional Contract Management,
Inc. (“PCMI”), took over employment responsibilities for the Dundee School District Athletic
Department in 2010.

As part of the arrangement West Educational Leasing did criminal

background checks on Neff and other Dundee employees, but did not conduct interviews. There
was no indication of prior criminal activity from Neff’s background check. School District
Superintendent Bruce Nelson certified that there was no documentation of unprofessional
conduct in Neff’s personnel file at that time.
Neff and Doe’s sexual relationship continued during the eighth grade basketball season,
and from January to April 2010 Neff and Doe had sexual contact “[a]t least 15 times.” Neff had
sexual contact with Doe in a school equipment room before practices and home games and, on at
least one occasion, surreptitiously in the back of the team bus returning from a game. Neff
instructed Doe to keep their relationship secret, and Doe testified that she did not disclose the
relationship to anyone. There is no witness testimony suggesting anyone knew of the sexual
relationship while it was ongoing.
During Doe’s eighth grade season, Aaron Carner, the school district’s athletic director,
received complaints from parents that Neff was sitting in the back of the bus when the team
traveled and was calling and texting students on the team. A teammate’s parent, Jessica Burd,
complained about Neff and Doe’s relationship in late February 2010 to the school’s vice
principal, along with Neff and Carner. Burd complained that Doe was “in love” with Neff, that

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Neff favored Doe during practice, that Doe’s infatuation was causing friction among team
members, and that school administrators should “put a stop to” the problem. But Burd never saw
Doe’s “crush” reciprocated by Neff. Indeed, Burd’s concern was that Doe’s behavior was “odd”
and negatively affecting the “team dynamic,” and that Neff “was not doing enough to stop it.”
Burd expressed shock to learn of the sexual relationship after Neff was caught.
Carner discussed the parent complaints with Neff, and instructed him to stop texting
players and to no longer sit with players in the back of the bus. According to Carner, the
parents’ complaints did not lead him to believe Neff was acting inappropriately, and the central
purpose of his discussion with Neff was to “protect [Neff] at the time” and to respect “normal
protocol.”
On April 23, 2010, school janitor Robert Kominek observed Neff and Doe engaging in
sexual contact in a janitor’s closet after school hours. Kominek promptly reported the incident to
Athletic Director Carner, who in turn called District Superintendent Nelson. Acting on Nelson’s
instructions, Carner called both the police and Child Protective Services. Neff was arrested,
prosecuted, and convicted of two counts of first-degree criminal sexual conduct, one count of
second-degree criminal sexual conduct, and one count of soliciting a child for immoral purposes.
He is currently incarcerated.
Pamela Campbell, Jane Doe’s mother, filed suit against Neff, Carner, Nelson, Dundee
Community Schools, and West Educational Leasing, asserting Title IX, 42 U.S.C. § 1983, and
Michigan state law claims. The district court granted the defendants’ motion for summary
judgment with respect to Title IX, § 1983, and various state law claims. The district court denied
the defendants’ motions for summary judgment on plaintiff’s state law claims for (1) violation of
the Elliott-Larson Civil Rights Act, M.C.L. § 37.402(a), against Dundee Community Schools,

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Nelson, and Carner; and (2) vicarious liability for Dundee Community Schools for Neff’s
negligent infliction of emotional distress. However, because the district court had granted
dismissals for all the federal law claims, it dismissed the remaining state claims without
prejudice for lack of jurisdiction. Plaintiff now appeals to this Court seeking reversal of the
district court’s grant of summary judgment on her Title IX and 42 U.S.C. § 1983 claims.
We review de novo a district court’s grant of summary judgment. Equal Employment
Opportunity Commission v. University of Detroit, 904 F.2d 331, 334 (6th Cir. 1990). Summary
judgment is proper only if “the pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show that there is no genuine issue of material fact
and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). In
reviewing a summary judgment motion, we view all facts and draw all reasonable inferences in
the light most favorable to the nonmoving party. Scott v. Harris, 550 U.S. 372, 378 (2007).
II. Title IX Claim
The plaintiff Campbell appeals the dismissals of the Title IX actions against Nelson,
Carner, West Educational Leasing, and Dundee Community Schools. “No person in the United
States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or
be subjected to discrimination under any education program or activity receiving Federal
financial assistance.” 20 U.S.C. § 1681(a). Title IX actions for monetary damages are available
to students subjected to sexual harassment or abuse by a teacher. See Williams ex rel. Hart v.
Paint Valley Local Sch. Dist., 400 F.3d 360, 367 (6th Cir. 2005).
Only recipients of federal funds may be liable under Title IX. Soper v. Hoben, 195 F.3d
845, 854 (6th Cir. 1999) (explaining that the government’s enforcement power may only be
exercised against the funding recipient itself, and damages liability under Title IX has not

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extended damages liability to parties outside the scope of this power). Title IX does not permit
individual liability against school officials for sexual harassment as only recipients of federal
funds can be held liable under Title IX. See id. Accordingly, Nelson and Carner cannot be held
individually liable, and the actions against them were properly dismissed.
Similarly, Title IX does not extend liability to West Educational Leasing since it did not
receive federal funds.

It is not enough that an entity “benefit economically from federal

assistance.” National Collegiate Athletic Ass’n v. Smith, 525 U.S. 459, 468 (1999). A fund
recipient’s damages liability for sexual harassment under Title IX is limited to circumstances
where the recipient has substantial control over both the harasser and the context in which the
known harassment occurs. Davis v. Monroe Cty Bd. of Educ., 526 U.S. 629, 645 (1999). West
Educational Leasing had neither. The Title IX action against West Education Leasing, Inc. was
therefore correctly dismissed.
Dundee Community Schools does not contest that it is a recipient of federal funds for
purposes of Title IX, nor does it contest that its employee sexually abused Doe. A school
district’s liability under Title IX for sexual harassment of a student requires a plaintiff to show
“an official of the school district who at a minimum has authority to institute corrective measures
on the district’s behalf has actual notice of, and is deliberately indifferent to, the teacher’s
misconduct.” Gebser v. Lago Vista Independent School Dist., 524 U.S. 274, 277 (1998). While
Superintendent Nelson and Athletic Director Carner are school officials who have the authority
to institute corrective measures against sexual harassment, the plaintiff did not provide sufficient
evidence that either had actual notice or showed deliberate indifference.
The plaintiff argues that actual notice of a substantial risk of sexual harassment or abuse
was provided to school officials in a number of ways. These indications include: Neff’s habit of

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sitting in the back of the bus with the girls on the team; Neff texting and calling the girls on their
cell phones; Jane Doe’s “crush” on Neff; and the school custodian having a “weird feeling”
about Neff and Doe’s relationship, which the custodian did not report until after the relationship
was discovered.

Director Carner spoke to Neff about the behavior after receiving parent

complaints, but neither the complaints nor Carner’s talk with Neff show any indication that there
was a risk of a sexual relationship between Neff and Doe. The complaints were related to
preserving the “team dynamic” by not showing favoritism. Under the actual notice standard, the
plaintiff must be able to show that the authority figures were on notice of a substantial risk of the
actual type of harassment that occurred. See Davis, 526 U.S. at 654. “Communications at odd
hours, inappropriate counseling, unchaperoned off-campus activities, and inappropriate
interactions with team members” do not provide notice that sexual harassment is occurring.
Henderson v. Walled Lake Consol. Schools, 469 F.3d 479, 490 (6th Cir. 2006). Doe and Neff
intended to keep the relationship secret, and did so successfully until they were caught. Even
Doe’s father, who was also coaching the team, was fooled. This fact gives rise to the inference
that the other observers with more distant relationships to Doe were not at fault when they did
not take action to remedy or report the unknown sexual activity. The custodian’s later reporting
that he had a completely internal and undiscussed “weird feeling” is not a basis for liability.
Nor was Dundee Community Schools deliberately indifferent to sexual harassment or
abuse. “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 v. Spencer Cty. Public School Dist., 231 F.3d 253, 260 (6th Cir.
2000).

“The deliberate indifference must, at a minimum, ‘cause [students] to undergo’

harassment or ‘make them liable or vulnerable’ to it.” Id. (quoting Davis, 526 U.S. at 654). If

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there was no notice to school officials of a risk of sexual harassment occurring, then there was no
deliberate indifference toward the risk.
The plaintiff contends that Director Carner’s testimony showed his indifference when he
advised Neff to stop sitting in the back of the bus. Carner stated that, “the conversation was to
protect [Neff] at the time. It wasn’t a red flag for me as far as, you know, is he doing anything
inappropriate or not” and “I felt like [Neff was] putting himself in a situation that was not good
for him as far as sitting in the back of the bus [in] the dark with kids, more importantly, girls.”
While the plaintiff claims that these statements prove that Carner was aware of and covering up
Neff’s behavior, the statements show just the opposite. Carner’s concern was that Neff should
follow protocol, not that there was a substantial risk that Neff was engaged in a sexual
relationship with Doe. There is no evidence that any school official, or even any other person,
was aware of the risk. Accordingly Dundee Community Schools did not intentionally disregard
such a risk. The grant of summary judgment for Dundee Community Schools was proper.
III. § 1983 Claim
The plaintiff Campbell also appeals the grants of summary judgment for Superintendent
Nelson and Athletic Director Carner, as well as Dundee Community Schools, for her claims
based on §1983. In order to hold Dundee Community Schools liable under § 1983, the plaintiff
must overcome the requirements of Monell v. Department of Social Services, 436 U.S. 658
(1978). Under Monell the plaintiff may not base her claim on a theory of respondeat superior,
but must show that the schools’ officials were acting according to a “policy” or “custom” within
the system that leads to or results in the deprivation of a constitutionally protected right of bodily
integrity, specifically the right not to be sexually molested by her coach. Id. at 694. The plaintiff
does not seem to assert that the sexual abuse resulted from an officially enacted policy or a

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custom that is “so permanent and well settled as to constitute a custom or a usage with the force
of law.” Id. at 691. A lack of knowledge of the sexual misconduct that was successfully
concealed for almost a year is not a “custom” of Dundee Community Schools.
As to Nelson and Carner, the plaintiff must show that the officials’ conduct violated a
constitutional right and that the right is “clearly established.” Saucier v. Katz, 533 U.S. 194,
201-02 (2001). The burden is on the plaintiff to show that the officials are not entitled to
qualified immunity. Binay v. Bettendorf, 601 F.3d 640, 647 (6th Cir. 2010). The plaintiff must
show that the supervisory officials “at least implicitly authorized, approved or knowingly
acquiesced in the unconstitutional conduct of the offending subordinate.” Bellamy v. Bradley,
729 F.2d 416, 421 (6th Cir. 1984). In this case the individual defendants had no reason to
believe that Doe was being sexually assaulted or molested by Neff because she and Neff
successfully hid their relationship. Apparently not even Doe’s own father, who also coached the
basketball team, had any suspicion that the relationship was occurring. Moreover, the mother,
plaintiff Campbell, apparently had no suspicion either, even though Neff was a friend and visitor
to the Campbell home and the daughter sometimes sneaked out of the house to meet Neff. There
are no facts of the slightest kind indicating guilty knowledge, negligence, or deliberate
indifference on the part of the school supervisory officials.
Accordingly, the judgment of the district court is AFFIRMED.

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