M.Q. v. Phenix City Board of Education, et al

Filing 62

MEMORANDUM OPINION AND ORDER 1. The Motion for Summary Judgment filed by the Board and DiChiara, Phillips, and Wilson in their official capacities 44 is GRANTED, and judgment is entered in favor of those Defendants and against M.Q. on those claim s. 2. The Motion for Summary Judgment filed by DiChiara, Phillips, and Wilson in their individual capacities 46 is GRANTED, and judgment is entered in favor of those Defendants and against M.Q. on those claims. 3. All claims brought against the Phenix City School District are DISMISSED. 4. This case will proceed against Defendant Young on all claims. Signed by Honorable Judge W. Harold Albritton, III on 8/5/2013. (Attachments: # 1 Civil Appeals Checklist)(jg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION

M.Q., a minor child, by and through her
parents and next friends, CHARLES and
JOSEPHINE K.,

)
)
)
)
Plaintiff,
)
)
v.
) CIVIL ACTION NO. 3:12-cv-313-WHA
)
(WO)
PHENIX CITY BOARD OF EDUCATION,
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PHENIX CITY SCHOOL DISTRICT, DR.
)
LARRY DiCHIARA, in his individual and
)
official capacities, ANNE PHILLIPS, in her
)
individual and official capacities, DAVID
)
WILSON, in his individual and official
)
capacities, JENNIFER DAWN YOUNG, in her )
individual capacity,
)
)
Defendants.
)

MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
This case is before the court on two Motions for Summary Judgment filed on June 7,
2013. The first Motion was filed by the Phenix City Board of Education (“the Board”) and by
Dr. Larry DiChiara (“DiChiara”), Anne Phillips (“Phillips”), and David Wilson (“Wilson”) in
their official capacities (Doc. #44), and the second Motion was filed by DiChiara, Phillips, and
Wilson in their individual capacities (Doc. #46). The Plaintiff, M.Q., a minor child suing
through her mother Josephine K. and her stepfather Charles K., filed a Complaint in this case on
April 5, 2012, and later filed a First Amended Complaint (Doc. #39) on June 5, 2012, alleging
violations under 20 U.S.C. § 1681 et seq. (“Title IX”), violations of due process and equal

protection pursuant to 42 U.S.C. § 1983, and various state law claims.1 The Plaintiff seeks
compensatory damages and also requests punitive damages, alleging that the actions of the
Defendants were done with malice, recklessness, and with deliberate indifference toward the
Plaintiff. For the reasons to be discussed, the Motions for Summary Judgment are due to be
GRANTED.

II. SUMMARY JUDGMENT STANDARD
Summary judgment is proper “if there is no genuine issue as to any material fact and . . .
the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986).
The party asking for summary judgment “always bears the initial responsibility of
informing the district court of the basis for its motion,” relying on submissions “which it believes
demonstrate the absence of a genuine issue of material fact.” Id. at 323. Once the moving party
has met its burden, the nonmoving party must “go beyond the pleadings” and show that there is a
genuine issue for trial. Id. at 324.
Both the party “asserting that a fact cannot be,” and a party asserting that a fact is
genuinely disputed, must support their assertions by “citing to particular parts of materials in the

1

In addition to the Defendants moving for summary judgment, the Plaintiff’s Amended
Complaint also brings claims against Jennifer Dawn Young and the Phenix City School District.
In the Answer filed by the Board and DiChiara, Phillips, and Wilson in their official capacities
(Doc. #40), paragraph 6 states that there is no legal entity known as the Phenix City School
District. The Plaintiff does not disagree. Accordingly, M.Q.’s claims against the Phenix City
School District will be dismissed. Jennifer Dawn Young has not appeared in this case and the
court will not discuss the claims brought against her. When the court refers to the “Defendants”
in this opinion, the term does not include Young.
2

record,” or by “showing that the materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.”
Fed. R. Civ. P. 56(c)(1)(A), (B). Acceptable materials under Rule 56(c)(1)(A) include
“depositions, documents, electronically stored information, affidavits or declarations, stipulations
(including those made for purposes of the motion only), admissions, interrogatory answers, or
other materials.”
To avoid summary judgment, the nonmoving party “must do more than show that there is
some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). On the other hand, the evidence of the non-movant must be
believed and all justifiable inferences must be drawn in its favor. See Anderson v. Liberty Lobby,
477 U.S. 242, 255 (1986).
After the nonmoving party has responded to the motion for summary judgment, the court
shall grant summary judgment if the movant shows 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).

III. FACTS
The submissions of the parties establish the following facts, viewed in a light most
favorable to the Plaintiff:
At the start of the 2010-2011 school year, the Plaintiff M.Q. was a ninth-grade student at
Central Freshman Academy (“CFA”). Her junior varsity cheerleading coach was Jennifer Dawn
Young (“Young”), an employee of the Phenix City Board of Education (“Board”), who worked at
Central High School (“CHS”), a separate building from CFA. M.Q. and Young often exchanged
3

Facebook messages and emails, and Young gave M.Q. several gifts, including clothing and a
Rolex watch. The two became close, and on some occasions Young told M.Q. that she would
commit suicide if M.Q. ever left her.
On October 10, 2010, Josephine K., M.Q.’s mother, discovered Facebook and email
messages on M.Q.’s computer that had been sent between Young and M.Q. Several of the
exchanges stated that Young wanted M.Q. to erase their messages because Young did not want
“anything to be misunderstood.” One of the messages was a letter in which Young stated that
she loved M.Q. “like a sister” and “not in an inappropriate way.” The message from Young also
stated that “you are the best thing that’s happened to me . . . and I’d never do anything to
jeapordize [sic] that. Part of me would forever be missing without you.” Josephine K. went to
CFA and showed Principal Anne Phillips (“Phillips”) the last of four pages of messages she had
copied, after which Phillips called Angela Clark, the School Resource Officer assigned to CFA
and CHS by the Phenix City Police Chief (“SRO Clark”).2 Officer Rogers, a police officer,
arrived and asked Josephine K. some questions. M.Q. was then checked out of school and
Officer Rogers and Officer Jason Whitten accompanied Josephine K. and M.Q. to the Child
Advocacy Center where M.Q. was interviewed. Later that day, Officer Rogers came to M.Q.’s
house and took her computer and told Josephine K. that he had told Young to stay away from
M.Q. Josephine K. told M.Q. that she was not to ride with Young anymore.
Josephine K. visited the school a second time on November 17, 2010. She asked Phillips
to remove Young as assistant cheerleading coach. On that day Josephine K. also warned M.Q.
2

Debbie Coulter (“Coulter”) scheduled the meeting with Phillips and spoke for Josephine
K. at the meeting. Coulter is M.Q.’s godmother, and she assisted Josephine K. throughout the
events giving rise to this case.
4

that she would be punished if she did not stay away from Young, which caused M.Q. to become
upset. That afternoon, Josephine K. drove M.Q. to cheerleading before a JV basketball game,
unaware that M.Q. had overdosed on some pills from the house—later determined to be
Ibuprofen and Flexeril—in an apparent suicide attempt. During the basketball game, the head
cheerleading coach noticed M.Q. acting strangely and drove her to the emergency room. The
coach called Josephine K., who came to the hospital, and also called David Wilson (“Wilson”)
the Director of Operations of the Board. Wilson then called Dr. Larry DiChiara (“DiChiara”),
the Superintendent, to apprise him of the situation. The next day Phillips and SRO Clark met to
discuss the incident.
M.Q. was admitted into the Bradley Center, a psychiatric treatment facility, on November
18 and remained until November 23.3 On November 19, Josephine K. and Charles K., M.Q.’s
stepfather, and Debbie Coulter met with Wilson and showed him some other messages from
Young that instructed M.Q. to delete them and some gifts that Young had given M.Q. This
meeting took place a day after Wilson learned that the same student that was in the hospital was
the one that was involved in the Young investigation. Wilson then met with DiChiara, who
directed Wilson to speak to the police department about their investigation of the events
surrounding Young and M.Q. Officer Rogers told Wilson that the police department was waiting
for the analysis of Young’s computer. Wilson and DiChiara decided to place Young on
administrative leave from her cheerleading duties, which Young protested, asking Wilson to ask
DiChiara to reconsider. DiChiara refused to reconsider, and he and Wilson completed the letter
3

It appears that M.Q. was hospitalized on other occasions during the events of this
lawsuit, though it is not clear to the court how many times or when those hospitalizations
occurred.
5

that placed Young on administrative leave until further notice. Wilson met with Young on
November 23 and gave her the letter. M.Q. returned to school after the Thanksgiving holidays
on November 29, 2010.
At no time during these contacts by Josephine K. with school officials or officers did
Josephine K. say that she thought anything of a sexual nature was going on between Young and
M.Q.
M.Q. continued to have contact with Young. Sometime in February 2011, M.Q. began
going from the CFA building to the CHS building almost every morning before school to visit
Young. It was against school policy for students to go between campuses without permission.
M.Q. also visited the drama teacher at CHS on two occasions to cover up her visits with Young
and, when asked, told the monitor at CHS that she was there to visit the drama teacher. One
morning at the end of February or the beginning of March, M.Q. went to Young’s classroom
upset because M.Q. had just ended her relationship with her boyfriend. After talking for a few
minutes, Young took M.Q. behind the bookshelf in her office and performed oral sex.
Afterwards, M.Q. went back to CFA for the rest of the school day and did not tell anyone what
had happened. This was the only incident of any sexual contact by Young with M.Q. M.Q. did
not visit Young in the CHS building again until the morning of March 4.
On March 3, 2011, Wilson was notified by the assistant principal at CHS that there were
reports that M.Q. had been visiting Young early in the mornings. On March 4, SRO Clark met
with the assistant principal early to watch and see if M.Q. came to the CHS building. When
M.Q. was discovered at CHS, Wilson and DiChiara discussed the matter, and that afternoon
DiChiara placed Young on administrative leave from all of her duties. Young was instructed not
6

to be present on school grounds or to have contact with any student. On March 11, 2011, Young
resigned from her employment with the Board. There is no evidence that any school officials had
any knowledge at that time of the single sexual contact with M.Q. by Young.

IV. DISCUSSION
Five of the counts in M.Q.’s Amended Complaint (Doc. #39) are at issue. Count One is a
claim against the Board for alleged violations of Title IX, 20 U.S.C. § 1681 et seq. Count Two is
brought against all Defendants pursuant to 42 U.S.C. § 1983 for alleged violations of M.Q.’s due
process and equal protection rights under the Fourteenth Amendment. Counts Four, Five, and
Six are comprised of various claims against all Defendants of negligence and wantonness which
allegedly resulted in injury to M.Q. over the course of the events leading up to this suit.4
The Defendants filed two Motions for Summary Judgment: the first was filed on behalf of
the Board and the official capacity Defendants (Doc. #44) and the second was filed on behalf of
the individual capacity Defendants (Doc. #46).
A. Title IX Claim – Count One
Count One of the Plaintiff’s Amended Complaint alleges that the Board5 unlawfully
discriminated against M.Q. on the basis of sex in violation of Title IX, 20 U.S.C. § 1681 et seq.

4

Counts Three, Seven, and Eight are brought only against Young.

5

M.Q. does not bring Count One against DiChiara, Phillips, and Wilson although she
alleges that the school officials had actual knowledge of Young’s misconduct and failed to
promulgate a sexual harassment complaint policy. However, even if M.Q. brought Count One
against DiChiara, Phillips, and Wilson, that claim would fail because “Title IX does not allow
claims against individual school officials; only funding recipients can be held liable for Title IX
violations.” Williams v. Bd. of Regents of Univ. Sys. of Ga., 477 F.3d 1282, 1300 (11th Cir.
2007) (citing Hartley v. Parnell, 193 F.3d 1263, 1270 (11th Cir. 1999)).
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As codified, Title IX provides that “[n]o 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. To
support her claim under Title IX, M.Q. alleges that the Defendants had actual and constructive
knowledge of Young’s misconduct and failed to institute corrective measures to remedy Title IX
violations, despite their authority to do so. The claim also states that the Defendants had no
official grievance procedure for bringing sexual harassment complaints and had no formal antiharassment policy, and that the Defendants should have performed a background check on
Young prior to her employment. Finally, M.Q. alleges that the Defendants knowingly permitted
a hostile environment which contributed to their discrimination against M.Q.
In its brief filed with its Motion for Summary Judgment, the Board argues that M.Q.
cannot meet the standard to hold a school board liable for the sexual harassment of a student by
one of its teachers.6 In Gebser v. Lago Vista Independent School District, 524 U.S. 274, 290
(1998), the Supreme Court made plain that not all sexual harassment by a teacher would make a
school district liable, stating that “Title IX is predicated upon notice to an appropriate person and
an opportunity to rectify any violation.” A school board is liable only when “an official of the
school district who at a minimum has authority to institute corrective measures on the district’s
6

The Board also argues that because M.Q. was sixteen at the time of the alleged sexual
acts and could therefore legally consent to them, Young’s actions did not rise to the level of
sexual harassment but instead were at most “sexual misconduct,” to which Title IX does not
apply. However, a student’s age does not determine whether Title IX applies. “Title IX creates
the right not to be subjected to sexual harassment when the school has knowledge of that
harassment, fails to prevent it, and such harassment interferes with the student’s education,”
regardless of the student’s age. Benefield ex rel. Benefield v. Bd. of Trs. of Univ. of Ala. at
Birmingham, 214 F. Supp. 2d 1212, 1218–19 (N.D. Ala. 2002) (“Title IX does not create
separate rights for individuals based on their age.”).
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behalf has actual notice of, and is deliberately indifferent to, the teacher’s misconduct.” Id. at
277. Therefore, to prove liability, a plaintiff must (1) identify a school official with authority to
take corrective action; (2) show that the school official had actual notice of the possibility of
sexual harassment; and (3) show that the school official with such notice exhibited deliberate
indifference to the harassment. Doe v. Sch. Bd. of Broward Co., Fla., 604 F.3d 1248, 1254 (11th
Cir. 2010) (citing Gebser).
Appropriate Person
The Gebser opinion did not specify which school official in particular a Title IX plaintiff
must identify; it simply stated that the official must have “authority to institute corrective
measures.” Gebser, 524 U.S. at 277. The Eleventh Circuit touched on this issue in Floyd v.
Waiters, which the Supreme Court vacated and remanded for further consideration in light of
Gebser, and which the Eleventh Circuit then reinstated after analyzing the Supreme Court’s
opinion. See Floyd v. Waiters, 133 F.3d 786 (11th Cir. 1998), vacated, 525 U.S. 802, reinstated,
171 F.3d 1264 (11th Cir. 1999), cert. denied, 528 U.S. 891 (1999). In the court’s reinstatement
of Floyd, it commented that the appropriate school official must be someone “high enough up the
chain-of-command that his acts constitute an official decision by the school district itself not to
remedy the misconduct.” Broward, 604 F.3d at 1255 (quoting Floyd, 171 F.3d at 1264, cert.
denied, 528 U.S. 891 (1999)).
In the present case, M.Q. has not identified which of the school officials is the
“appropriate person” in this case; however, she alleged in Count One that “all named
Defendants” had actual and constructive knowledge of Young’s misconduct. In addition, the
record is not clear as to the precise duties and authority of DiChiara, Phillips, and Wilson as
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officials of the Board, although as the Superintendent of the Board, the Principal of M.Q.’s
school, and the Director of Operations of the Board, respectively, it is reasonable to assume that
each of the officials could have intervened to remedy Young’s misconduct. Therefore, the court
will assume that DiChiara, Phillips, and Wilson each had sufficient authority to institute
corrective measures in this case and will discuss the other requirements of the Title IX analysis as
they apply to each of the school officials.
Actual Notice
The second requirement of a Title IX teacher-on-student harassment claim is that the
identified school official had actual notice of the possibility of sexual harassment.
Phillips, the Principal of CFS, first learned of Young’s messages to M.Q. from Josephine
K. at their meeting in October 2010. A police investigation was instituted as a result. Young
was told by the police officers to stay away from M.Q., and M.Q. was told by her mother not to
ride with Young anymore.
Phillips’s next contact involving M.Q. was on November 17, when Josephine K. met with
her at the school and asked Phillips to remove Young as assistant cheerleading coach. Josephine
K. also warned M.Q. on that day that she would be punished if she didn’t stay away from Young.
She then drove M.Q. to cheerleading before a basketball game, and it was during the game that
M.Q. was taken to the hospital. Phillips found out that M.Q. was in the hospital for an overdose
of medication either on November 17—the night of that incident—or the next morning.
Wilson, the Board’s Director of Operations, and Superintendent DiChiara both learned
about that incident on November 17, when M.Q.’s coach called Wilson from the hospital. On
November 19, Wilson met with M.Q.’s family and learned more about the content of the
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messages and the gifts Young had given to M.Q. This was also the day after Wilson realized that
the same student that was taken to the hospital was the one involved in the Young investigation,
and the day after M.Q. was admitted to the Bradley Center. At this point, no one in M.Q.’s
family had told any of the school officials they met with that they suspected M.Q. and Young’s
relationship to be sexual in nature. After meeting with M.Q.’s family, Wilson relayed the details
of the meeting to DiChiara, who instructed Wilson to speak to the police department about the
Young investigation. When Wilson was told by Officer Rogers that the police were waiting for
analysis of Young’s computer, he took the information to DiChiara, and they agreed that Young
should be removed from her cheerleading responsibilities.
None of the three school officials had knowledge of anything further going on in the
Young investigation or with M.Q. until early March 2011, when Wilson learned from the
assistant principal at CHS that M.Q. had been coming to the CHS campus in the mornings to
visit Young. Wilson and DiChiara discussed the matter, and DiChiara placed Young on
administrative leave from all of her duties on March 4. In the letter given to Young, DiChiara
wrote that Young was advised not to have any contact with any student enrolled at the school and
was not to be present on any school campus. At this point, M.Q. had not told anyone that Young
had performed a sexual act on her during one of her visits to Young’s classroom. Young
resigned on March 11.
Actual notice may be satisfied in a variety of ways. If M.Q. showed that DiChiara,
Phillips, or Wilson had knowledge that Young was sexually harassing M.Q., or if they actually
knew of instances of sexual harassment by Young toward other students sufficient to alert them
of the possibility of Young sexually harassing M.Q., the actual notice requirement would be
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satisfied. See J.F.K. v. Troup Co. Sch. Dist., 678 F.3d 1254, 1260 (11th Cir. 2012). Also, in
some circumstances, “lesser harassment may still provide actual notice of sexually violent
conduct, for it is the risk of such conduct that the Title IX recipient has the duty to deter.”
Broward, 604 F.3d at 1258 (citing Williams v. Bd. of Regents of the Univ. Sys. of Ga., 477 F.3d
1282, 1294 (11th Cir. 2007), in which the Plaintiff’s claim withstood a motion to dismiss when
the University knew that her attacker had a history of lesser sexual harassment but failed to
monitor him). The teacher accused of harassing the Plaintiff in Broward had been accused in
two prior instances of sexually harassing students, and although the prior incidents were
unconfirmed, the Eleventh Circuit held that the similarity of the prior complaints to the
Plaintiff’s raised a material issue of fact on the actual notice issue. Id. at 1259.
J.F.K. is analogous to the present case. In that case, a female teacher had sexually
molested her twelve-year-old student on multiple occasions. See J.F.K., 678 F.3d at 1256. The
victim’s parents sued the school district, alleging that the school’s principal had sufficient notice
of the teacher’s inappropriate behavior toward students based on various complaints from parents
and reports from other teachers. The principal knew that the teacher had encouraged students to
lie to their parents about skipping class, given the victim expensive gifts, texted students
excessively, verbally abused female students, was possessive of the victim, and sat close to the
victim on a couch under a blanket. Id. at 1257–59. The court concluded that, although the
principal knew the teacher’s conduct was “inappropriate, devoid of professionalism, and reeked
of immaturity,” the conduct was not of a sexual nature and “was not enough to put the principal
on actual notice that there was a risk of sexual harassment.” Id. at 1260–61.

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The behavior exhibited by Young toward M.Q. and reported to DiChiara, Phillips, and
Wilson is similar to the type of conduct exhibited by the teacher in J.F.K., but even less severe.
Young often communicated with M.Q. through email and Facebook messages and expressed her
love “like a sister” for M.Q., and Young gave M.Q. gifts and paid her other special attention.
Although inappropriate, Young’s actions were not sexual in nature until early March. M.Q.
testified in her deposition that Young only touched her sexually on one occasion and did not
make sexual advances until that time. DiChiara, Phillips, and Wilson all had knowledge in the
fall of the messages and gifts given to M.Q., and they knew that M.Q. was hospitalized when she
took an overdose of pills after being told to stay away from Young. However, like the principal
in J.F.K., none of the school officials involved with the situation had enough information to
provide actual notice of the risk of sexual misconduct. And, of course, the evidence in this case
shows no knowledge of any sexual contact at all before Young was placed on administrative
leave for continuing to allow M.Q. to visit her. Considering the undisputed facts in the light
most favorable to M.Q., the court finds that there is not sufficient evidence to create a genuine
issue of material fact as to whether DiChiara, Phillips, and Wilson had actual notice of the
possibility that Young would sexually harass M.Q.
Deliberate Indifference
Even if the second requirement of the Title IX framework was fulfilled in this case, “[i]n
addition to requiring that an appropriate person have actual notice of the teacher’s misconduct, a
Title IX plaintiff must show that the official was deliberately indifferent to that misconduct.”
Broward, 604 F.3d at 1259 (citing Gebser, 524 U.S. at 277). “Deliberate indifference is an
exacting standard; school administrators will only be deemed deliberately indifferent if their
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response to the harassment or lack thereof is clearly unreasonable in light of the known
circumstances.” Id. (quoting Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 648 (1999)). In
other words, an official decision not to remedy the violation will satisfy the deliberate
indifference requirement. Id. The evidence in this case does not show that the responses of
DiChiara, Phillips, or Wilson to Young’s conduct were clearly unreasonable based on the known
information about Young—none of the school officials that knew about Young’s behavior
exhibited deliberate indifference to her misconduct.
The Eleventh Circuit in Broward held that there was an issue of fact as to whether the
school board was deliberately indifferent to a teacher’s alleged sexual misconduct. Id. at 1260.
The court reached that conclusion even though the principal and the school board took some
action in response to the sexual allegations by three students against the teacher; the court stated
that the level of action taken was excusable after the first student’s allegation of misconduct but
not after the later charges of sexual harassment by two other students. Id. After the first student
complained of harassment, the principal obtained written statements from the teacher and the
student, timely reported the incident to the school board’s investigation unit, and requested a
formal investigation, resulting in the teacher being placed on administrative leave for the rest of
the semester. The school board reviewed the results of the investigation and concluded there was
no cause to discipline the teacher further.
The court held that it was after the second student complained of harassment by the same
teacher during the same school year that the reasonableness of the school board’s response came
into question. Id. at 1261. In light of the known circumstances of the previous complaint, the
principal’s “failure to institute any corrective measures aimed at ferreting our the possibility of
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[the teacher’s] sexual harassment could constitute deliberate indifference.” Id. The court stated
that although “a school district is not deliberately indifferent simply because the measures it takes
are ultimately ineffective,” a school district could become deliberately indifferent if it “has
knowledge that its remedial action is inadequate and ineffective” and does not take reasonable
steps to eliminate the misconduct. Id. (internal citations omitted).
When Josephine K. first told Phillips about the content of the messages sent between
Young and M.Q., Phillips immediately called SRO Clark and contacted the local police to
investigate. The messages, although inappropriate, did not suggest that sexual misconduct or
harassment was taking place. When DiChiara, Phillips, and Wilson learned about M.Q.’s
hospitalization which implicated her relationship with Young, Young was promptly removed
from her cheerleading responsibilities while M.Q. was separated from her at the Bradley Center.
Nothing further took place until March, when DiChiara placed Young on indefinite
administrative leave after he learned that M.Q. was visiting Young at another campus. All of
these responses took place before it was discovered that Young had performed oral sex on M.Q.,
and M.Q. stated that Young had never confronted her sexually before that time. There was no
reason for DiChiara, Wilson, or Phillips to take more action than they did upon learning of the
details of M.Q. and Young’s relationship, especially since, unlike Broward, there was no
evidence that sexual harassment occurred before early March 2011, when Young was placed on
indefinite administrative leave. The court finds that the school officials’ conduct in response to
learning of Young’s behavior was not clearly unreasonable and therefore not deliberately
indifferent in light of the known circumstances.

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Because there is no genuine issue of material fact that the school officials did not have
actual notice of sexual misconduct of Young and that, in any event, the officials did not act with
deliberate indifference after learning of misconduct, the Board is due summary judgment on
Count One of M.Q.’s Amended Complaint.
B. Due Process and Equal Protection Claims – Count Two
Count Two of M.Q.’s Amended Complaint claims pursuant to 42 U.S.C. § 1983 that she
was deprived of her rights of due process and equal protection under the Fourteenth Amendment.
M.Q. alleges that DiChiara, Phillips, and Wilson are “personally liable in their supervisory
capacity” for failing to take corrective action upon learning that Young violated M.Q.’s
constitutionally protected right to be free of sexual harassment at school. M.Q. also alleges that
DiChiara, Phillips, and Wilson’s failure to stop the sexually hostile environment constituted
deliberate indifference to M.Q.’s rights and sanctioned Young’s conduct. In addition, the claim
alleges that the individual Defendants and the Board followed improper customs or policies, such
as failing to perform a proper background check on Young, that contributed to the violation of
M.Q.’s rights.7
Due Process
The individual capacity Defendants contend that they are entitled to qualified immunity
and move for summary judgment based on the Eleventh Circuit’s decision in Hartley v. Parnell,
193 F.3d 1263 (11th Cir. 1999). Qualified immunity offers complete protection to an individual
7

In the brief submitted by the official capacity Defendants and the Board (Doc. #45),
those Defendants claim that they are not named in Count Two of the Amended Complaint.
However, because the Amended Complaint alleges that the Board had a custom or policy that
resulted in deliberate indifference to the violation of M.Q.’s rights, the court will discuss the
Board’s alleged liability under § 1983.
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government official acting within his discretionary authority unless a plaintiff shows that the
official violated the plaintiff’s clearly established constitutional right. Wood v. Kesler, 323 F.3d
872, 878 (11th Cir. 2003). The parties do not dispute that the individual capacity Defendants
were acting with discretionary authority during the events of this case; therefore, the burden
shifts to M.Q. to show that the Defendants are not entitled to qualified immunity. Broward, 604
F.3d at 1265. M.Q. alleges that DiChiara, Phillips, and Wilson are liable for Young’s violation
of her constitutional rights in their supervisory capacity. In response, the Defendants contend
that the facts of this case are similar to Hartley, and that based on that case M.Q. cannot establish
supervisory liability for the acts of Young.
In Hartley, a sixteen-year-old female student was inappropriately touched and kissed by a
male teacher on a school field trip. Id. at 1266. When the student’s father reported the incident
to Parnell, the school superintendent, the father mentioned that the district attorney had begun an
investigation. Parnell made arrangements to place the student, Hartley, in a different class and
then met with the teacher to discuss Hartley’s allegations. The teacher said that the touching and
kissing was an accident, which Parnell believed. Parnell did not conduct any further
investigation, and when the teacher was arrested and pleaded guilty to misdemeanor harassment,
Parnell recommended to the school board that the teacher be placed on one year of probation
with a letter of reprimand in his file. The board rejected Parnell’s recommendation, and a few
months later the Alabama State Board of Education revoked the teacher’s teaching certificate.
Id. at 1267. Hartley brought claims against Parnell for violating her substantive due process and
equal protection rights. Id. at 1268–69.

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In its discussion of Hartley’s due process claim, the court first stated that “supervisory
officials are not liable under § 1983 for the unconstitutional acts of their subordinates ‘on the
basis of respondeat superior or vicarious liability.’” Id. at 1269 (quoting Belcher v. City of Foley,
30 F.3d 1390, 1396 (11th Cir. 1994)). It then stated that supervisory officers are liable under §
1983 when the supervisor personally participates in the alleged violation or when “there is a
causal connection between actions of the supervising official and the alleged constitutional
deprivation.” Id. “The causal connection can be established when a history of widespread abuse
puts the responsible supervisor on notice of the need to correct the alleged deprivation, and he
fails to do so.” Id. To fulfill the notice requirement, the deprivations constituting “widespread
abuse” must be “obvious, flagrant, rampant and of continued duration, rather than isolated
occurrences.” Id. It was undisputed that Parnell did not personally participate in the sexual
abuse of Hartley. Id. There was also no evidence of prior inappropriate acts by the teacher that
would have put Parnell on notice of potential sexual abuse, and the court noted that Parnell had
not instituted any sort of policy that would have led the teacher to believe that sexual abuse of
students was permitted. Id. The court stated that Parnell did not violate Hartley’s right to due
process and held should have been granted qualified immunity on the substantive due process
claim. Id.
The Defendants argue that because neither DiChiara, Phillips, nor Wilson personally
participated in the alleged sexual harassment and because there was no history of inappropriate
acts by Young that would have placed them on notice that Young would sexually harass M.Q.,
the Defendants did not violate M.Q.’s substantive due process rights. In addition, they argue that
there is no evidence of any policy at the school that would have led Young to believe that sexual
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harassment of M.Q. was permissible. For purposes of their argument, the Defendants concede
that M.Q. had a constitutional right not to be sexually abused by Young; however, they do not
concede that Young deprived M.Q. of that right. For purposes of this discussion the court will
assume that Young violated M.Q.’s right not to be sexually abused at school.
The court finds that M.Q. cannot show the requisite causal connection to establish the
individual capacity Defendants’ supervisory liability for the alleged constitutional violation
committed by Young. The Defendants did not have notice of Young’s actions based on her
“history of widespread abuse” or the Defendants’ “custom or policy” of deliberate indifference.
“The standard by which a supervisor is held liable in her individual capacity for the actions of a
subordinate is extremely rigorous.” Broward, 604 F.3d at 1266 (internal citation omitted). The
only evidence of Young’s inappropriate behavior toward M.Q. is the messages exchanged
between them and gifts given to M.Q. by Young. Although this evidence shows that Young and
M.Q. had formed a close attachment that was improper for a coach-student relationship, Young’s
conduct as shown by this evidence does not comprise a “history of widespread abuse” that would
put the Defendants on notice of the possibility of her future single sexually abusive act. See id.
(holding that two prior instances of sexual harassment by teacher did not rise to necessary level
of “obvious, flagrant, rampant and of continued duration”) (quoting Hartley, 193 F.3d at 1269).
In addition, the evidence is insufficient to establish a custom or policy of deliberate indifference
to students’ constitutional rights. None of the evidence establishes that the Defendants, as
supervising officials, “had any sort of policy in place prior to the sexual abuse which could have
led [Young] to believe that sexual abuse of students was permitted.” Hartley, 193 F.3d at 1269.

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Therefore, DiChiara, Phillips, and Wilson are entitled to qualified immunity on the substantive
due process claim.
Equal Protection
The individual capacity Defendants also rely on Hartley in arguing that they are due
summary judgment on M.Q.’s equal protection claim under § 1983. The court in Hartley
rejected the plaintiff’s argument that Parnell violated her equal protection rights by deciding not
to terminate or suspend the offending teacher after learning of the allegations of sexual abuse. Id.
at 1269–70. The court held that because Hartley did not suffer any further sexual abuse or harm
of any sort after Parnell learned of her allegations, Parnell did not deprive her of her equal
protection rights. Id. at 1269. In this case, M.Q. did not suffer any sexual harassment after
March 4, 2011, when school officials learned that she had been visiting Young and placed Young
on administrative leave. In addition, although M.Q. was hospitalized and attended counseling
sessions after she overdosed on medication on November 17, 2010, M.Q. took the pills in
response to Josephine K. warning her to stay away from Young, and not in response to Young’s
inappropriate behavior which the school officials allegedly could have prevented. In fact, after
the events of November 17, Young was placed on administrative leave from her cheerleading
duties and told to stay away from Young—an action that the school officials took before any
allegations of sexual misconduct had been made.
In comparing the present case to Hartley, the court finds that the individual capacity
Defendants reacted with more caution than did Parnell, whom the Eleventh Circuit found had not
violated Hartley’s right to equal protection. Immediately after discovering Young and M.Q.
together after Young had been warned to stay away from M.Q., Young was put on indefinite
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administrative leave with instructions not to enter school property. M.Q. did not suffer any
further harm after these actions; therefore, DiChiara, Phillips, and Wilson did not violate M.Q.’s
equal protection rights and are due qualified immunity on that claim.
Municipal Liability
Count Two of M.Q.’s Amended Complaint also alleges that the Board had a custom or
policy that resulted in deliberate indifference to complaints of sexual harassment by teachers.
However, since there is no evidence demonstrating that school officials employed by the Board
were deliberately indifferent to the complaints of alleged teacher-student sexual harassment,
M.Q. cannot show that the Board had a custom of responding to teachers’ discriminatory actions
with deliberate indifference. See Sauls v. Pierce Co. Sch. Dist., 399 F.3d 1279, 1288 (11th Cir.
2005); see also Gebser, 524 U.S. at 277. To the extent that Count Two alleges a § 1983 claim
against the Board, the Board is due summary judgment on that claim.
C. State Law Claims – Counts Four, Five, and Six
Counts Four, Five, and Six of M.Q.’s Amended Complaint allege state law claims against
the Defendants. Count Four alleges negligence and wantonness against DiChiara, Phillips, and
Wilson for leaving Young in the presence of M.Q. after learning of Young’s inappropriate
behavior, failing to conduct a proper background check on Young, and failing to report under the
Alabama Child Abuse Reporting Act, Ala. Code § 26-14-1 et seq. M.Q. claims damages
resulting from the physical and emotional trauma surrounding Young’s sexual misconduct and
M.Q.’s suicide attempt. In Count Five, M.Q. alleges that DiChiara, Phillips, and Wilson
negligently and wantonly hired and retained Young, causing the same injuries to M.Q. Count Six
is a claim for negligence and wantonness brought against the Board and DiChiara, Phillips, and
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Wilson in both their individual and official capacities. The other state law claims in the
Amended Complaint are brought only against Young.
The brief submitted by the Board and the official capacity Defendants argues that they are
entitled to sovereign immunity as to all of M.Q.’s state law claims. Section 14 of the Alabama
Constitution provides that “the State of Alabama shall never be made a defendant in any court of
law or equity. It is well settled in Alabama that local school boards are agencies of the State, not
of the local governmental units they serve, and they are entitled to the same absolute immunity as
other agencies of the State.” Ex parte Phenix City Bd. of Educ., 109 So. 3d 631, 632 (Ala. 2012)
(quoting Ex parte Montgomery Co. Bd. of Educ., 88 So. 3d 837, 841 (Ala. 2012) (quotation
marks omitted)). This protection extends to city boards of education sued in tort actions. Ex
parte Phenix City Bd. of Educ., 67 So. 3d 56, 59 (Ala. 2011) (citing Enterprise City Bd. of Educ.
v. Miller, 348 So. 2d 782, 784 (Ala. 1977)). DiChiara, Phillips, and Wilson also have immunity
in their official capacities as employees of the Board. See Ex parte Montgomery Co., 88 So. 3d
at 842 (citing Ex parte Dangerfield, 49 So. 3d 675, 681 (Ala. 2010) (holding that all claims
against a state official in his or her official capacity seeking damages are barred by doctrine of
immunity)).
Immunity from the state law claims also extends to the Defendants in their individual
capacities. A person who acts as the agent of a city board of education shares in its sovereign
immunity in his or her individual capacity “when the conduct made the basis of the claim against
the agent is based upon the agent’s . . . exercising judgment in the discharge of duties imposed by
statute, rule, or regulation in . . . educating students.” Id. at 842–43 (quoting Ex parte Cranman,
792 So. 2d 392, 405 (Ala. 2000)). This immunity is not absolute—once a defendant has
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established that the plaintiff’s claims arise from a function entitling the state agent to immunity,
the burden shifts to the plaintiff to show that the defendant acted “willfully, maliciously,
fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the
law.” Id. at 843. (quoting Ex parte Cranman, 792 So. 2d at 405). M.Q. has not disputed that the
individual capacity Defendants were acting with discretionary authority in their roles educating
students or that they exceeded their authority. However, M.Q. has alleged that DiChiara,
Phillips, and Wilson acted wantonly by failing to conduct a proper background check of Young,
leaving Young in the presence of M.Q. after learning of her inappropriate behavior, failing to
report under the Alabama Child Abuse Reporting Act, hiring and retaining Young, and generally
causing injuries to M.Q. In the damages section of M.Q.’s Amended Complaint, she also alleges
that the Defendants’ acts were done with recklessness, deliberate indifference, and malice.
The Defendants contend that M.Q. has not carried her burden to show that their conduct
was willful or malicious. M.Q.’s Response to the Defendants’ briefs does not address their
arguments that the school officials acted within their discretion in the performance of their duties
when reacting to the situation with M.Q. and Young. The record does not contain any evidence
that DiChiara, Phillips, or Wilson acted willfully or maliciously in response to the complaints
made by Josephine K. about Young or to the discovery that M.Q. had been visiting Young in
violation of school rules. In addition, M.Q. has not shown any school policy or custom that the
Defendants violated during the events of this case.
M.Q. alleges that the individual capacity Defendants failed to report that M.Q. was
suspected to be a victim of child abuse to a duly constituted authority as made mandatory by the
Alabama Child Abuse Reporting Act, Ala. Code § 26-14-1 et seq. The Defendants argue that
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when Phillips called SRO Clark into her office, who was a law enforcement official assigned to
the school, while Josephine K. showed Phillips some of the messages from Young to M.Q.,
resulting in a police investigation, that the mandatory reporting requirement in the Act was
fulfilled. M.Q. makes no responsive argument to the Defendants’ contentions, and the court
finds that she has not shown that the Defendants willfully or maliciously failed to report as
required by law.
Finally, Count Five of the Amended Complaint alleges that DiChiara, Phillips, and
Wilson were wanton in hiring and retaining Young as an employee. In response to this allegation
the Defendants state that they, as individuals, do not have authority to hire, retain, or terminate
school employees, and that the Board is the only entity having that authority. See Ala. Code §§
16-12-16 and 16-11-17 (establishing that the superintendent nominates employees of the Board
and recommends them for dismissal, and that the Board dismisses its employees for misconduct).
Although DiChiara in his official capacity as superintendent makes his recommendation to the
Board for hiring and retaining employees, he is entitled to sovereign immunity as discussed
above, as is the Board. DiChiara, Phillips, and Wilson do not have the authority as individuals to
hire and retain employees, and so to the extent that Count Five alleges that the individual
capacity Defendants were wanton in their duties, the Defendants are due summary judgment on
that claim.
In considering the evidence of the actions of the Board and DiChiara, Phillips, and
Wilson in both their official and individual capacities, the court finds that they are entitled to
sovereign and state agent immunity and that M.Q. has not shown otherwise. Therefore, the

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Defendants are due summary judgment on the state law claims brought against them in Counts
Four, Five, and Six.
V. CONCLUSION
For the foregoing reasons, it is hereby ORDERED as follows:
1. The Motion for Summary Judgment filed by the Board and DiChiara, Phillips, and
Wilson in their official capacities (Doc. #44) is GRANTED, and judgment is entered in favor of
those Defendants and against M.Q. on those claims.
2. The Motion for Summary Judgment filed by DiChiara, Phillips, and Wilson in their
individual capacities (Doc. #46) is GRANTED, and judgment is entered in favor of those
Defendants and against M.Q. on those claims.
3. All claims brought against the Phenix City School District are DISMISSED.
4. This case will proceed against Defendant Young on all claims.
Done this 5th day of August, 2013.

/s/ W. Harold Albritton
W. HAROLD ALBRITTON
SENIOR UNITED STATES DISTRICT JUDGE

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