Moore et al v. Chilton County Board of Education

Filing 68

MEMORANDUM OPINION AND ORDER directing that Defendant's motion for summary judgment (Doc. # 35 ) is GRANTED. Signed by Chief Judge William Keith Watkins on 3/3/14. (scn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
JILL MOORE and JIM MOORE,
as Statutory Beneficiaries of A.M.,
and on behalf of the Estate of
A.M.,
Plaintiffs,
v.
CHILTON COUNTY BOARD OF
EDUCATION,
Defendant.

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CASE NO. 2:12-CV-424-WKW
[WO]

MEMORANDUM OPINION AND ORDER
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-onpeer 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.
I. JURISDICTION AND VENUE
Subject matter jurisdiction is proper pursuant to 28 U.S.C. § 1331. Personal
jurisdiction and venue are uncontested.
II. STANDARD OF REVIEW
To succeed on summary judgment, the movant must demonstrate “that there
is no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). On a Rule 56 motion, the court views
the evidence and the inferences from that evidence in the light most favorable to
the nonmovant. Jean-Baptiste v. Gutierrez, 627 F.3d 816, 820 (11th Cir. 2010).
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 (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
2

U.S. at 324. 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).
III. FACTS AND PROCEDURAL HISTORY
A.

Facts
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:
Dear Mom and Dad,
I’m leaving today. I’m taking my own life.
because I can’t take this crap anymore.

I’m killing myself

Eli, the local law enforcement, Lola, Leslie, Joab, etc. – this is all the
crap that’s making me do this.
Don’t try to stop me. By the time you find this letter, I’ll be dead. It’s
not your fault. But do not worry. Rejoice because I will be with Him.
Soon, I will return, but in a different form.
(Compl. ¶ 16; Jim Moore’s Dep. 63–67; Jill Moore’s Dep. 48–50, 74–76.)1

1

A.M.’s sister, Lesley, died by electric shock from a downed power line the year before,
and Eli was A.M.’s deceased sister’s boyfriend, whom A.M. blamed for her sister’s death. Joab,
A.M’s cousin, was shot to death by his peers several years before A.M. died, and Lola was
3

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 become despondent based upon persistent teasing from her peers
about her weight and the fact that she walked with a limp. (Jim Moore’s Dep.
163.)
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

A.M.’s dog, which A.M. saw get hit by a car and die. (Jill Moore’s Dep. 30, 36, 48–49, 50.)
The Board cites A.M.’s note for its absence of any statement of peer-on-peer bullying at school.
4

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 fifthgrade 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
5

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

6

make “fun of her walk.” (Virginia’s Dep. 41–42.) Virginia identified by name a
few of these alleged bullies. (Virginia’s Dep. 79–81, 102, 147–48.)
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.
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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.
8

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. had reported to a teacher or other school official that
she was the target of bullying. (Virginia’s Dep. 57.) Virginia observed that some
teachers would allow A.M. to stay in the classroom until a few minutes before the
next bell rang, but Virginia did not know why, and Virginia said that it was not
unusual for a student to seek permission to stay in a classroom between classes.
(Virginia’s Dep. 72–74.) Virginia was shocked to learn that her friend, A.M., had
committed suicide, as A.M. had never confided in her any suicidal ideations.
(Virginia’s Dep. 130.)
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
9

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.)

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Moreover, the school quarter in which A.M. died, Brandon and A.M. were
in a class together, called Life (Lifelong Individualized Physical Education).2 Ms.
Robinson was the teacher, and the class met in the gym where the students played
games largely unsupervised. (Brandon’s Dep. 54, 133–34.) In this class, during
the weeks preceding A.M.’s death, Brandon would say things to A.M., “making
fun of her weight and size.” (Brandon’s Dep. 54.) Ms. Robinson stayed in her
office most of the time and would come out only periodically to check on the
students; hence, again, the gym provided an easy forum for Brandon to pick on
A.M. without getting caught. (Brandon’s Dep. 55–56, 98.) There were three other
students in Life class who also picked on A.M. on an “almost” daily basis, calling
her names like “fat bitch,” “fat,” or “fat ass.” (Brandon’s Dep. 98, 133–39.) On
one occasion, Brandon recalls that during Life class another student called A.M. a
“fat ass” and “fat bitch” and told her that she “needed to change classes because
nobody liked her.” (Brandon’s Dep. 142.) A.M. just sighed, shook her head, and
walked away. (Brandon’s Dep. 142–43.) Not surprisingly, since he was one of the
perpetrators, Brandon never reported the bullying A.M. endured to any school
official. (Brandon’s Dep. 65, 146.)

2

Ms. Robinson says that A.M. participated in this class during her first semester during
her tenth-grade year, and that Brandon was not a student in that class because she taught only
female students in her physical education classes. (Robinson’s Aff. 2.) For summary judgment
purposes, Brandon’s testimony that he and A.M. were in a physical education class together in
the weeks preceding her death is accepted as true.
11

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.3 (Jim Moore’s Dep. 132–34.)
Mr. Moore discussed the matter with Brandon’s mother, who assured him that she
would handle it.

(Jim Moore’s Dep. 133, 135, 136.)

After Mr. Moore’s

conversation with Brandon’s mother, A.M. did not complain to him again about
being teased on the bus, and he assumed that the situation had resolved itself. (Jim

3

Mr. Moore did not indicate whether A.M. provided any details about the nature of the

teasing.
12

Moore’s Dep. 135–36.) Mr. Moore did not mention A.M’s complaint to the bus
driver or to any school official (Jim Moore’s Dep. 136), but Mrs. Moore did talk to
the bus driver (Jill Moore’s Dep. 100). Ms. Lewis responded that she was aware
that there “was a problem” (Jill Moore’s Dep. 100), but Mrs. Moore does not know
what actions, if any, the bus driver took to help stop the teasing. (Jill Moore’s
Dep. 100.) Neither Mr. Moore nor Mrs. Moore ever lodged a complaint with any
school official about bullying. (Jill Moore’s Dep. 162–63.) In fact, as stated, the
Moores essentially were unaware it was happening.
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

13

administration of the situation since she felt that she “had taken care of it.”4
(Lewis’s Aff. 5; see also Lewis’s Dep. 22–24.)
Brandon also got in trouble once – either in the his ninth- or tenth-grade year
– for bullying another girl whom he teased because she had a nervous tic.
(Brandon’s Dep. 70, 72.) That girl reported him to Assistant Principal Giles, and
Ms. Giles lectured Brandon on bullying and told him he “needed to stop.”
(Brandon’s Dep. 72–78.) And on another occasion “close to” the end of Brandon’s
tenth-grade year, Principal Alan Thompson required Brandon to serve twenty days
in alternative school at the beginning of his eleventh-grade year as punishment for
teasing a different girl about her weight. (Brandon’s Dep. 84–87.)
Ms. Giles never received a report from the principal,5 A.M.’s guidance
counselor, or A.M.’s STEP6 teacher that A.M. had complained to them of any
problems related to bullying, nor did Ms. Giles ever receive a complaint from A.M.

4

Ms. Lewis testified that requiring an older student to sit at the front of the bus, where
the younger students sat, was “heavy punishment,” that the Board imposed limits on her
disciplinary authority, and that she imposed on Brandon the “maximum punishment” within her
authority. (Lewis’s Dep. 32.) Ms. Lewis also testified that the governing policies did not require
her to report a single incident of misconduct, but that she would have been required to report any
further incidents involving Brandon and A.M. (Lewis’s Dep. 35–36.) Had Ms. Lewis learned of
any other incidents, she would have “carried [Brandon] to the assistant principal or the
principal.” (Lewis’s Dep. 36.)
5

Mr. Thompson, the principal, is now deceased. (Giles’s Aff. 1.)

6

STEP is an acronym for “Student Teacher Empowerment Program,” a program
“designed to provide high school students with a small group . . . and a teacher advocate” for
purposes of providing students “with instruction related to academic, personal[,] and career
issues.” (Giles’s Aff. 3.)
14

herself. (Giles’s Aff. 3, 6.) While Ms. Giles occasionally spoke with Mrs. Moore
about A.M. on issues unrelated to this litigation, Mrs. Moore never informed Ms.
Giles of “any complaints that A.M. was being bullied or harassed at school.”
(Giles’s Aff. 4.) A.M. also never reported any acts of harassment by her peers to
Victor Rodriquez, who was her graduation coach with whom she met one-on-one
every other day during her years at Jemison High School. (Rodriquez’s Dep. 11,
12, 18, 29.)
B.

Procedural History
After A.M. committed suicide, Plaintiffs filed this lawsuit against the

Board.7 The governing Complaint asserts three claims arising under federal law.
Count I asserts a Fourteenth Amendment substantive due process claim under 42
U.S.C. § 1983 premised on the Board’s failure to prevent peer-on-peer bullying.
Count II alleges discrimination on the basis of disability, in violation of § 504(a).
Count III alleges that the same facts that give rise to a § 504(a) violation also
constitute a violation of Title II of the ADA.
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.

7

Plaintiffs are proper parties to bring this suit pursuant to § 6-5-391 of the Alabama
Code. (See Doc. # 57, at 5.)
15

IV. DISCUSSION
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 any program or activity
receiving Federal financial assistance.” 29 U.S.C. § 794(a).
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 (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
16

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.

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:
(1) the plaintiff is an individual with a disability, (2) he or she was
harassed based on that disability, (3) the harassment was sufficiently
severe or pervasive that it altered the condition of his or her education
and created an abusive educational environment, (4) the defendant
knew about the harassment, and (5) the defendant was deliberately
indifferent to the harassment.
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 peeron-peer disability harassment claims (collecting cases)), aff’d, 522 F. App’x 576
(11th Cir. 2013).8 The deliberate indifference standard articulated in Davis has
been described as having “considerable bite,” as it requires that the defendant have

8

The Board also points out that the Eleventh Circuit’s affirmance in Long occurred after
this court’s ruling on the earlier-filed motion to dismiss and that notably, the Eleventh Circuit did
not disturb the district court’s application of Davis, also an ADA/§504(a) peer-on-peer disability
harassment case. See Long, 522 F. App’x at 577 n.1 (“Because both parties effectively agree that
the deliberate indifference standard set forth in Davis . . . should apply to the § 504 and ADA
claims, we find that the district court was correct” to borrow Davis’s five-element framework.).
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actual notice of the alleged harassment. Santiago v. Puerto Rico, 655 F.3d 61, 73
(1st Cir. 2011).
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.
A.

Disability
As relevant here, the ADA defines an individual with a “disability” as one

who has “a physical or mental impairment that substantially limits one or more
major life activities of such individual.” 42 U.S.C. § 12102(1)(A). Section 504(a)
employs a virtually identical definition. See 29 U.S.C. § 706(8)(B)(i). Plaintiffs
contend that A.M. suffered impairments because of her Blount’s Disease and her
“weight” and that A.M. was substantially limited in her ability to “run or jump.”
(Doc. # 57, at 11.) The Board asserts that Plaintiffs have not shown that A.M.
suffered from a physical or mental impairment or that running and jumping are
major life activities. The arguments are addressed in turn.
1.

Physical or Mental impairment

The ADA’s implementing regulations define “physical or mental
impairment” as
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(1) Any physiological disorder or condition, cosmetic disfigurement,
or anatomical loss affecting one or more body systems, such as
neurological, musculoskeletal, special sense organs, respiratory
(including speech organs), cardiovascular, reproductive, digestive,
genitourinary, immune, circulatory, hemic, lymphatic, skin, and
endocrine; or
(2) Any mental or psychological disorder, such as an intellectual
disability (formerly termed “mental retardation”), organic brain
syndrome, emotional or mental illness, and specific learning
disabilities.
29 C.F.R. § 1630.2(h) (2011).9
a.

Blount’s Disease

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
9

While § 1630.2 is a regulation promulgated by the Equal Employment Opportunity
Commission with respect to Title I of the ADA involving employment discrimination cases, the
regulation is instructive for this case.
19

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
(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.
Mr. Moore, A.M.’s father, testified that, after the surgery and until the time
of her death, A.M. “walked with an unusual gait because of her knee.” (Jim
Moore’s Dep. 173; see also Jim Moore’s Dep. 177 (A.M. “walked with a limp.”).)
Moreover, one of A.M.’s classmates confirms that A.M. walked with a “limp,” that
her legs bowed a “little outward,” and that it appeared that “one of [A.M.’s] legs
was shorter than the other.” (Virginia’s Dep. 19.) The Board points to other
20

evidence, such as Mr. Moore’s testimony that he and A.M. spent time together
fishing, deer hunting, and visiting state parks. (Jim Moore’s Dep. 38–39.) The
Board also relies on affidavits from school officials indicating their lack of
knowledge that A.M. suffered any physical limitations (Giles’s Aff. 2; Lewis’s
Aff. 3–4) and an affidavit from A.M.’s physical education teacher that A.M. was
able to walk the daily required one mile (Robinson Aff. 2). Notwithstanding the
conflicting evidence, the court finds that A.M. has presented sufficient evidence
that raises a genuine dispute of material fact regarding whether she had a
qualifying impairment as a result of her early childhood diagnosis of Blount’s
Disease.
b.

Weight

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.10 (Compare Doc. # 1, at 56, with Doc. # 57, at 12.) Whether
obesity qualifies as an impairment under the ADA is undecided in this circuit. See
Greenberg v. BellSouth Telecomms., Inc., 498 F.3d 1258, 1264 (11th Cir. 2007)

10

The Moores do not contend that A.M. suffered from an eating disorder (Jim Moore’s
Dep. 81, 172; Jill Moore’s Dep. 142), and there is no contrary evidence. Accordingly, the
allegation in the Complaint that A.M. was disabled because of an eating disorder finds no
evidentiary substantiation in the summary judgment record; thus, this opinion does not address
the allegation.
21

(declining to decide in a pre-ADAAA11 case whether the plaintiff suffered from an
impairment based upon his obesity because regardless the plaintiff could not show
that he was substantially limited in a major life activity); see also Lescoe v. Pa.
Dep’t of Corrs. SCI-Frackville, 464 F. App’x 50, 53 (3d Cir. 2012) (“[T]his Court
has not definitively reached a position regarding whether obesity is a disability
under the ADA that limits a major life activity.”).12
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
11

The ADA Amendments Act of 2008 (“ADAAA”) broadened the definition of disability
under the ADA. See ADA Amendments Act of 2008, Pub.L. No. 110–325, 122 Stat. 3553
(codified as amended in scattered sections of 42 U.S.C.).
12

Pre-ADAAA, the EEOC’s regulations provided that “except in rare circumstances,
obesity is not considered a disabling impairment.” 29 C.F.R. Pt. 1630, App., § 1630.2(j). That
language has been removed.
22

demonstrated that A.M. had impairments – associated with Blount’s Disease and
her excessive weight – within the meaning of the ADA.
2.

Substantial Limitation in a Major Life Activity

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.”13

42 U.S.C.

§ 12102(2)(A) (defining chapter terms). An individual is substantially limited in a
major life activity if he or she is “[s]ignificantly restricted as to the condition,
manner or duration under which an individual can perform a particular major life
activity as compared to the condition, manner, or duration under which the average
person in the general population can perform that same major life activity.” 29

13

Major life activities also include “major bodily functions,” which are not at issue here.
23

C.F.R. § 1630.2(j)(1)(ii). A substantial limitation in one major life activity is
sufficient. See Shepard v. United Postal Serv., Inc., 470 F. App’x 726, 729 (11th
Cir. 2012).
The EEOC implementing guidelines, see supra note 9, provide a
comprehensive definition of “substantially limits” in favor of “expansive
coverage”:
The primary object of attention in cases brought under the ADA
should be 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.
Accordingly, the threshold issue of whether an impairment
“substantially limits” a major life activity should not demand
extensive analysis.
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 F. App’x 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

24

any circuit on this issue.14 Pre-ADAAA, the answer was not clear in this circuit.
See Fornes v. Osceola Cnty. Sheriff’s Office, 179 F. App’x 633, 634 (11th Cir.
2006) (observing that “[t]he district court held that running was not a major life
activity,” but concluding that it was unnecessary to “decide this issue” because the
claim failed on other grounds); Chanda v. Engelhard/ICC, 234 F.3d 1219, 1222
(11th Cir. 2000) (observing that in a prior decision it had “affirm[ed] the trial
court’s finding of a physical impairment based on petitioner’s heart disease, but
held that a diminished activity tolerance for normal daily activities such as lifting,
running and performing manual tasks, as well as a lifting restriction, did not
constitute a disability under the ADA.” (citing Hilburn v. Murata Elecs. N. Am.,
Inc., 181 F.3d 1220 (11th Cir. 1999) (assuming without deciding for purposes of
the appeal that running qualifies as a major life activity))). But see Tompkins v.
Mineral, 302 F. App’x 666, 667 (9th Cir. 2008) (“[R]unning is not . . . a major life
activity.”); Piascyk v. City of New Haven, 64 F. Supp. 2d 19, 26–27 (D. Conn.
1999) (“Running, jumping, climbing stairs and ladders, and crawling simply are
not sufficiently significant or essential functions to qualify as major life activities
under the ADA.”), aff’d, 216 F.3d 1072 (2d Cir. 2000).

14

Independent research revealed only Robbins v. Saturn Corp., 532 F. App’x 623 (6th
Cir. 2013), an unpublished decision in which the Sixth Circuit observed: “We have . . . held that
foot, leg, and shoulder injuries that prevent the plaintiff from running, jumping, bending, and
working more than eight hours a day do not rise to the level of a disability under the ADA.” Id.
at 631 (internal quotation marks omitted) (citing a pre-ADAAA decision)).
25

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. 11cv1041, 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,
26

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.
B.

Harassment Based Upon a Disability
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, any harassment was
not based upon any disability. These arguments are not persuasive.
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
27

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.
C.

Severe or Pervasive Harassment
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).
“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
28

(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 nonexistent, 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.15

15

Plaintiffs offer Michael D. Freeman, Ph.D., as an expert in the fields of medical
epidemiology and forensic epidemiology for his conclusion that “bullying was the likely cause of
A.M.’s suicide, to a reasonable degree of scientific certainty.” (Doc. # 48-1, at 15.) Mr.
Freeman’s testimony is the subject of a motion to exclude. It is unnecessary to rule on the
29

The court need not wrestle with these issues, however, as it again will
assume without deciding that Plaintiffs have raised a genuine dispute of material
fact whether the harassment was sufficiently severe or pervasive and objectively
offensive that it denied A.M. equal access to education. Even if it is assumed that
A.M. was the victim of severe or pervasive, and objectively offensive, disability
harassment that negatively affected her access to education, Plaintiffs have not
raised a genuine dispute of material fact that the Board had actual knowledge of
the possibility of any disability harassment toward A.M.
D.

Actual Knowledge of Disability Harassment
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 (1998)).
1.

An Appropriate Person

“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.

The first task is to identify who Plaintiffs contend is an

motion to exclude in order to resolve the summary judgment motion, given the absence of
evidence that an appropriate person had actual notice of and acted with deliberate indifference to
the possibility of disability harassment targeted against A.M. (discussed infra).
30

“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),16 focusing
instead on her lack of actual knowledge of any disability harassment toward A.M.,
and that concession is accepted for purposes of the summary judgment analysis.
The Board contends, however, that Plaintiffs cannot produce admissible evidence
demonstrating any other school official is an appropriate person.
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 that “the ultimate question of who is an appropriate person is necessarily

16

To be precise, the Board contends that the only “appropriate persons” are the principal
and the assistant principal. See KB v. Daleville City Bd. of Educ., 536 F. App’x 959, 962–63
(11th Cir. 2013) (“[W]e have not hesitated in concluding that principals, as the highest ranking
school officials present at schools every day, are high enough on the chain of command to
impute liability to the School Board” under Title IX (citation and internal quotation marks
omitted)). Plaintiffs do not contend that the principal, who now is deceased, had actual notice of
the possibility that A.M.’s peers bullied A.M. on the basis of her disabilities; hence, it is
unnecessary to address whether the principal of Jemison High School is an appropriate person. It
is notable, though, that with respect to the principal’s response to the report he received of
Brandon’s teasing of a different student, the principal disciplined Brandon by requiring him to
attend twenty days in alternative school. The evidence suggests, therefore, that when the
principal had actual notice of bullying, he did not ignore it, but imposed disciplinary action
against the offending student.
31

a fact-based inquiry because officials’ roles vary among school districts.” Doe v.
Sch. Bd. of Broward Cnty. Fla., 604 F.3d 1248, 1256 (11th Cir. 2010). Plaintiffs
merely make an unsupported assumption that any “district employee[ ]” will
suffice, but that assumption is insufficient to get this case beyond summary
judgment. As explained by the Seventh Circuit:
We decline simply to name job titles that would or would not
adequately satisfy this requirement. School districts contain a number
of layers below the school board: superintendents, principals, viceprincipals, and teachers and coaches, not to mention specialized
counselors such as Title IX coordinators. Different school districts
may assign different duties to these positions or even reject the
traditional hierarchical structure altogether. Because officials’ roles
vary among school districts, deciding who exercises substantial
control for the purposes of Title IX liability is necessarily a fact-based
inquiry.
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
32

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.”17 Id.
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.18
Plaintiffs also point to no evidence as to how Alabama organizes its public schools,

17

The Hawkins court also observed that Gebser’s pronouncement in the context of
teacher-student harassment – i.e., that an appropriate person is a school official who has
“authority to address the discrimination and to institute corrective measures” – may in the
context of student-peer harassment result in “a much broader number of administrators and
employees [who] could conceivably exercise at least some control over student behavior.” 322
F.3d at 1287.
18

Ms. Lewis, the bus driver, had only limited disciplinary authority, as she testified at her
deposition. Plaintiffs do not cite this testimony, and the court is not obligated to search the
record in support of evidence for either side or to formulate arguments on a party’s behalf. The
testimony is merely noted, as is Staehling v. Metropolitan Government of Nashville & Davidson
County, No. 3:07cv797, 2008 WL 4279839, at *10 (M.D. Tenn. Sept. 12, 2008), in which the
court found that “[a] school bus driver is not an ‘appropriate person’ with authority for purposes
of Title IX liability.”
33

the authority and responsibility granted by state law to administrators and teachers,
whether there are written policies that designate specified school officials as
having the requisite authority, or any other facts and circumstances.19
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.
2.

Actual Knowledge

“An ‘appropriate person’ must have actual knowledge of the discrimination
or harassment the plaintiff alleges occurred.”20

Williams, 477 F.3d at 1293

(quoting Gebser, 524 U.S. at 290). The substance of the notice provided must be
adequate to alert the appropriate person “of the possibility of [A.M.’s disability]
harassment” by her peers. J.F.K. v. Troup Cnty. Sch. Dist., 678 F.3d 1254, 1255–
56 (11th Cir. 2012) (citation and internal quotation marks omitted). Complaints
that are “too general” are insufficient to provide actual notice. Hawkins, 322 F.3d
19

There is affidavit testimony from the superintendent that the Board timely complied
with Alabama’s “first law” addressing student harassment, titled the Student Harassment
Prevention Act, Ala. Code § 16-28B-1, by adopting an anti-harassment policy, but the Act’s
compliance deadline and the policy post-date A.M.’s death and, thus, are not particularly helpful
for the appropriate-person analysis. (Hayden’s Aff. 1–2.)
20

While the parties have pointed to no evidence or made any argument that the Board
had actual notice that A.M. potentially was suicidal, it is worth noting that the issue “is not
whether appropriate persons had actual notice that [A.M.] was a suicide risk, but whether [the
Board] had actual notice of disability harassment of [A.M.].” Long, 2012 WL 2277836, at *29.
34

at 1285.

J.F.K., a teacher-student Title IX sexual harassment case, provides

guidance as what constitutes adequate notice. See 678 F.3d at 1260–61. There, the
Eleventh Circuit held that although the principal knew the teacher’s conduct
toward a student was “inappropriate” and “devoid of professionalism” and “reeked
of immaturity,” the principal had no knowledge that the conduct was of a sexual
nature, and, thus, the notice “was not enough to put the principal on actual notice
that there was a risk of sexual harassment.” Id.; see also Gebser, 524 U.S. at 291
(affirming summary judgment because a teacher’s inappropriate comments were
“plainly insufficient to alert the principal to the possibility” that the teacher was
involved in a sexual relationship with a student).
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.

35

a.

Open and Obvious Theory

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
of constructive knowledge. And Davis expressly rejected constructive notice as a
theory of liability under Title IX for student-on-student harassment. See Davis,
526 U.S. at 642 (rejecting a “negligence” standard for imposing liability on Title
IX schools for failing to respond to harassment of which school officials “should
have known”); see also Gabrielle M. v. Park Forest-Chicago Heights, Ill. Sch.
Dist. 163, 315 F.3d 817, 823 (7th Cir. 2003) (rejecting an assertion of actual notice
of peer-on-peer harassment on the part of the school because the assertion of notice
was based only on the fact that the teachers must have noticed the harassment
because “teachers constantly supervise kindergartners,” not on any fact of actual
notice).
b.

Unnamed Teachers

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 (1986) (A motion for summary judgment looks to “pierce the pleadings and to
36

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.
c.

Named School Officials

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

37

knowledge, but rather amounts to hearsay and speculation.21 A plaintiff cannot
overcome summary judgment based upon inadmissible hearsay or speculation. See
Macuba, 193 F.3d at 1322 (inadmissible hearsay); Avenue CLO Fund, Ltd. v. Bank
of Am., N.A., 723 F.3d 1287, 1294 (11th Cir. 2013) (speculation).
Brandon testified that three to six months prior to A.M.’s death, two male
classmates told him that Ms. Giles summoned them to her office because A.M.
“went to Ms. Giles.” (Brandon’s Dep. 103–04.) However, Brandon cannot testify
about what his peers told him because he has no personal knowledge of the event
and his testimony about what his classmates told him is hearsay.

Moreover,

Brandon’s testimony is speculative because the two classmates did not tell him
why Ms. Giles summoned them to her office or what happened as a result of their
meeting with Ms. Giles. Brandon merely speculates that the topic of conversation
was bullying toward A.M. (Brandon’s Dep. 104–05 (“They never told me what
[the meeting] was for or what happened.”).)

Brandon’s testimony clearly is

insufficient to establish Ms. Giles’s actual knowledge of disability harassment
against A.M., and Plaintiffs proffer no other evidence. Accordingly, the evidence,

21

Federal Rule of Civil Procedure 56(c)(4) provides that “an affidavit or declaration used
to support or oppose a motion [for summary judgment] must be made on personal knowledge
[and] set out facts that would be admissible in evidence.” In Macuba v. Deboer, 193 F.3d 1316
(11th Cir. 1999), the Eleventh Circuit held that this procedural rule “also applies to testimony
given on deposition.” Id. at 1323. Thus, an out-of-court statement made to a deponent is
“admissible in evidence” only if it is “admissible at trial for some purpose.” Id.
38

viewed in the light most favorable to Plaintiffs, establishes that Ms. Giles did not
have actual knowledge that A.M. possibly was a victim of disability harassment.
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.”22 (Brandon’s Dep. 100.) Brandon candidly admits, however, that he does
not know what A.M. told Ms. Robinson. Rather, “in [his] mind,” he believed that
A.M. went to Ms. Robinson’s office to report the bullying. (Brandon’s Dep. 100.)
At his deposition, Brandon was compelled upon questioning to speculate as to
what, if anything, transpired on that day between A.M. and Ms. Robinson, but
district courts are not permitted to rest a summary judgment denial on speculation.
According to Brandon, Ms. Robinson did not provide the class with any
22

Ms. Robinson testified that usually when she “directed the students in any of [her]
classes to sit in the bleachers and be quiet, it was typically in response to the students’ being too
loud in the gymnasium, which has very bad acoustics.” (Doc. # 35-5.) Plaintiffs point to no
evidence to refute that reasoning. Ms. Robinson further attests that her “office is not located
inside of the gym, so if a student was present in the gym, he or she would be unable to see
whether another student entered or exited [her] office.” (Robinson’s Aff. 3.)
39

justification for the punishment of sitting on the bleachers, and there is no evidence
of what allegedly occurred in Ms. Robinson’s office between Ms. Robinson and
A.M. For instance, there is no evidence of what A.M. told Ms. Robinson and that,
if she did report any bullying conduct, what the substance of that report was.
Accordingly, Plaintiffs fail to raise a genuine dispute of material fact that Ms.
Robinson had actual notice of the possibility of disability harassment against A.M.
Virginia believes she confided in Ms. Easterling about the bullying against
A.M.23 But her deposition testimony about the substance of what she told Ms.
Easterling is skeletal, and the substance is important for the analysis. Virginia does
not remember what she told Ms. Easterling, and Plaintiffs do not cite any other
evidence from which to gauge Ms. Easterling’s level of knowledge. Accordingly,
Plaintiffs fail to raise a genuine dispute of material fact that Ms. Easterling had
actual notice of the possibility of disability harassment 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
23

Ms. Easterling attests that “A.M. never complained to [her] that she was being picked
on, harassed, or bullied at school or on the bus.” (Easterling’s Aff. 2.) That attestation is
undisputed. Ms. Easterling also denies that Virginia reported to her that “A.M. was bullied or
harassed.” (Easterling’s Aff. 2.) Although that fact is disputed, the dispute turns out to be
immaterial.
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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.
3.

Summary

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
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material fact that the Board had actual knowledge of the possibility that A.M.’s
peers had subjected her to disability harassment.
E.

Deliberate Indifference
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. Because the standard is more than “a mere
reasonableness standard,” the Supreme Court emphasized that, “[i]n an appropriate
case, there is no reason why courts, on a motion . . . for summary judgment . . .
could not identify a response as not ‘clearly unreasonable’ as a matter of law.” Id.
at 649. Indeed, “[t]he deliberate indifference standard is a high one. Actions and
decisions by officials that are merely inept, erroneous, ineffective, or negligent do
not amount to deliberate indifference . . . .” Doe on Behalf of Doe v. Dallas Indep.
42

Sch. Dist., 153 F.3d 211, 219 (5th Cir. 1998); see also Doe, 604 F.3d at 1259
(“Deliberate indifference is an exacting standard.”). In Davis, the Supreme Court
recognized, however, that deliberate indifference may exist where the defendants
had actual notice of possible harassment, but “made no effort whatsoever either to
investigate or to put an end to the harassment.” Davis, 526 U.S. at 654.
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
43

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). 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.24
V. CONCLUSION
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 Board, through
“appropriate” school officials, had actual knowledge of the possibility of disability
harassment against A.M. The court recognizes that A.M.’s parents have suffered
an unbearable tragedy and that proving their case is difficult without A.M. here to
24

To the extent that Plaintiffs fault Ms. Easterling or Ms. Lewis for failing to report the
alleged disability harassment to the assistant principal or principal, the First Circuit has held that
an “empty allegation that a school employee ‘failed to report’ harassment to someone higher up
in the chain of command who could have taken corrective action is not enough to establish
institutional liability.” Santiago, 655 F.3d at 75. “Title IX does not sweep so broadly as to
permit a suit for harm-inducing conduct that was not brought to the attention of someone with
authority to stop it.” Id.
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tell her side of the story personally.

However, in pursuing their disability

harassment claim under the ADA and § 504(a) against the Board, Plaintiffs bear
the burden of submitting summary judgment evidence that creates a triable issue of
fact. They have failed to do so, and, thus, their claims cannot survive.
Accordingly, it is ORDERED that Defendant’s motion for summary
judgment (Doc. # 35) is GRANTED. A separate final judgment will be entered.
DONE this 3rd day of March, 2014.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

45