Doe et al v. Rutherford County, Tennessee, Board of Education

Filing 117

MEMORANDUM OPINION OF THE COURT re 77 Motion for Summary Judgment. Signed by District Judge Aleta A. Trauger on 8/18/2014. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.) (ds)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
JANE DOE, JOHN and MARY DOE, Parents
And Legal Guardians of the Minor Child, JUNE
DOE; JOHN and MARY DOE, Parents and
Legal Guardians of the Minor Child, SALLY
DOE,
Plaintiff,
v.
RUTHERFORD COUNTY, TENNESSEE,
BOARD OF EDUCATION,
Defendant,

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Case No. 3:13-cv-00328
Judge Aleta A. Trauger

MEMORANDUM
The defendant has filed a Motion for Summary Judgment (Docket No. 77), to which the
plaintiffs have filed a Response in opposition (Docket No. 93) (filed under seal), and the
defendant has filed a Reply (Docket No. 104) (filed under seal). For the reasons stated herein,
the defendant’s motion will be denied.
BACKGROUND
I. Overview
Jane Doe, June Doe, and Sally Doe (the “Doe Sisters”) are the daughters of John and
Mary Doe. June Doe and Sally Doe are minors; Jane Doe recently reached the age of majority.
During the time frame relevant to this lawsuit, the Doe Sisters were enrolled in, and played
basketball for, Siegel High School (“SHS”), which is overseen by the defendant, the Rutherford
County, Tennessee, Board of Education (“RCBE”). Alan Bush coaches the SHS girls’ basketball
team, and his daughter, Jane Roe, played on the team with the Doe Sisters. Jane, June, and Sally

1

Doe allege that, between November 29 and October 2, 2012, Jane Roe (the coach’s daughter)
sexually assaulted them by placing her finger in or near their rectums or vaginas without their
consent during and after practice on multiple occasions. Broadly, the plaintiffs allege that,
despite reporting these incidents multiple times and at multiple levels within SHS and to the
RCBE, the administration slow-walked its investigation of the incident, downplayed the
seriousness of the allegations, meted out only token discipline to Jane Roe (and no one else),
protected Jane Roe, the coach (her father), and the team over the Doe Sisters’ personal safety,
retaliated against the Doe Sisters for complaining about the sexual harassment, and
constructively forced them out of the school.
Based on these allegations, the plaintiffs assert claims under Title IX, 20 U.S.C. § 1682,
for both discrimination and retaliation. The RCBE requests summary judgment on both sets of
claims.
II. Materials Supporting the Motion
The parties in this case conducted an extraordinary amount of discovery, much of which
is before the court.1 The parties have also filed competing statements of facts with
corresponding objections thereto.2 The court has scrutinized the asserted facts and objections, as

1

In support of the defendant’s Motion for Summary Judgment, the defendant filed the following
materials: (1) excerpts of certain depositions (Docket No. 80); (2) affidavits from Renee Alma
Martin, Angel McCloud, Coach Bush, and Jay Seals (Docket Nos. 82-85), and (3) a summary of
evidence submitted under Fed. R. Evid. 106 (Docket No. 81). In support of their opposition, the
plaintiffs filed complete copies of the deposition transcripts with attached exhibits for numerous
depositions. (Docket Nos. 92, 97, and 113.)
2

In support of its Motion for Summary Judgment, the RCBE filed a Statement of Material Facts
(Docket No. 79), to which the plaintiffs filed a Response (Docket No. 108) (corrected late-filed
version, filed with leave of court). In support of their opposition, the plaintiffs filed a Statement
2

well as the underlying record. In some limited instances, the defendant is correct that the
plaintiffs mischaracterized certain facts or took testimony out of context to create a misleading
impression, that the plaintiffs at times appear to rely on inadmissible hearsay in support of
certain facts, and that the plaintiffs made some unnecessary responses instead of just writing
“admit.” Given the volume of facts at issue (343 facts asserted by the defendant, 170 facts
asserted by the plaintiffs), it would be unnecessarily cumbersome to detail the court’s analysis of
each particular fact. Suffice it to say, the court has taken the parties’ objections into account in
ascertaining whether particular asserted facts are material, subject to genuine dispute, supported
by admissible evidence (for the truth of the matter asserted or otherwise), and material.3
III. Facts
The Doe family moved to the United States from New Zealand in 2006. Through
October 2012, the Doe Sisters were homeschooled, primarily by their father, John Doe.
At some point, the SHS coaching staff became aware that the Doe Sisters were excellent
basketball players and essentially recruited them to attend SHS and play for the girls’ basketball
team. The Doe Sisters decided to attend SHS because they wanted to play in a better basketball
league. In the middle to end of October 2012 (apparently a few weeks or months into the 20122013 school year), the Doe Sisters began attending SHS and joined the basketball team. Alan
Bush was the team’s head coach and was supported by several assistant coaches, including Jay
Seals. Coach Bush’s daughter, Jane Roe, was a member of the team.

of Undisputed Material Facts (Docket No. 95), to which the defendant filed a Response (Docket
No. 14) (late-filed with leave of court).
3

Given the voluminous record, the court’s summary of the facts is not exhaustive.
3

The underlying incidents of harassment at issue occurred on October 29 and November 2,
2012. The incidents concerned a type of “initiation” ritual, whereby a girl on the team would
attempt to place her finger up the rectum of another girl by surprise – at least sometimes while
the victim was clothed. The Doe Sisters and school officials were unaware of this practice at the
time, which the students referred to as “cornholing,” among other names.4
On October 29, 2012, Jane Roe engaged in the following harassing actions: (1) she twice
attempted to cornhole Sally Doe (a freshman and the youngest of the Doe Sisters) – once in the
locker room before practice and once while Sally was stretching against the gym wall during
practice; and (2) attempted to cornhole June Doe (the middle Doe Sister) while she was
stretching during practice, shortly before making her second attempt to cornhole Sally. When
she attempted to cornhole June Doe, Jane Roe told June: “You’ve been initiated.” At least with
respect to the incidents that occurred during practice, both sisters were wearing three layers of
clothing when Jane Roe attempted to cornhole them. Nevertheless, when contact was made,
June Doe felt Jane’s Roes fingers press inside her vaginal area through her underwear, spandex,
and basketball shorts. Despite two attempts, Jane Roe was not able to penetrate Sally Doe’s
rectum or vagina because Sally reacted quickly both times.
June Doe and Sally Doe did not report these incidents at the time they occurred.
However, June Doe told Jane Roe not to attempt to cornhole their oldest sister, June Doe, who
was the only Doe Sister yet to be “initiated.”
Despite this admonition, Jane Roe made suggestive gestures by poking her finger at a
basketball and laughing at the Doe Sisters, apparently in an effort to mimic the act of cornholing

4

The parties continue to debate the appropriate name for this practice and how to characterize it.
For purposes of this opinion, the court will refer to the practice as cornholing.
4

them. On November 2, 2012, Jane Roe attempted to cornhole Jane Doe (who was unaware of
the prior incidents involving her sisters) while she was stretching her fingers to her toes. During
the assault, Jane Doe felt Jane Roe’s finger push through her clothing and into her rectum “a
little bit.”5 Jane Roe laughed as if the matter were a joke. Jane Doe told Jane Roe that she
would hit her if she ever did it again. Jane Doe’s anus was sore after the incident.
Jane Doe went home upset and crying. She reported the cornholing incident to her father
that night, after which the other two Doe Sisters told him that Jane Roe had also attempted to
cornhole them. John Doe reported the incidents to Coach Bush that night, indicating that the
Doe Sisters felt violated by Jane Roe’s conduct. John Doe asked Coach Bush to keep the matter
secret and to deal with it on his own.6 Coach Bush verbally reprimanded his daughter, grounded
her for a month, and had her apologize to the Doe Sisters the next day. He otherwise took no
disciplinary action, did not inform the team about the incidents (at least with any degree of
specificity), and did not report the incident to other school officials. By not reporting the
incident (albeit consistent with John Doe’s wishes), Coach Bush likely violated school policy
requiring school officials to report any incidents of harassment or bullying within 24 hours.
Furthermore, the Bush family did not view Jane Roe’s (private) punishment as “serious.”
After November 2, 2012, some girls on the team continued to “cornhole” each other in
front of the Doe Sisters. In one instance, two of the girls may have mocked the Doe Sisters by

5

Jane Doe’s deposition transcript reflects Jane Doe’s difficulty in speaking about the specific
details of the incident.

6

John Doe recorded the conversation without Coach Bush’s knowledge. The record contains a
complete transcript of the discussion. John Doe reiterated several times that the family sought to
keep the matter secret for the time being. At no point did Coach Bush indicate that school policy
otherwise required him to report incidents of harassment, hazing, or bullying within 24 hours.
5

pretending to cornhole each other. Nevertheless, the teammates did not cornhole, or directly
threaten to cornhole, the Doe Sisters after November 2, 2012. The Doe Sisters continued to
attend school and practice with the team. Other than what has already been described, no
teammates attempted to “haze” or bully them in the wake of the initial incidents. However, in
March 2013, in the hallways of the school, June Doe was subjected to a practice called “slicing
the cheese,” whereby a student “slices” her hand between a student’s buttock cheeks. June Doe
was initially reluctant to report these slicing incidents, because she did not feel that she could
trust the adults at SHS and felt that it would be taken as a “joke.” However, she did report them,
and neither she nor the administration was able to determine who was “slicing” June Doe. To
avoid this issue, the administration permitted June Doe to leave class five minutes early from
each class; once she began leaving class early, June Doe experienced no further “slicing”
incidents. The administration did not send notice to the student body to stop this alleged
conduct.
On November 15, 2012, Mrs. Doe and Jane Roe’s mother, Mary Doe, had a verbal
altercation at an away game, stemming from a discussion about Jane Roe’s conduct and the lack
of discipline for it. At some point after the October 29 and November 2 incidents, Coach Bush
named Jane Roe as a “team captain,” despite his knowledge of Jane Roe’s harassing conduct.
The Doe family, particularly Mrs. Doe, took umbrage at Coach Bush’s decision to promote Jane
Roe to team captain under the circumstances.
On November 19, 2012, Mrs. Doe reported the cornholing incidents involving her
daughters to SHS Principal Jason Bridgeman. She reported that her daughters had been sexually
assaulted, and she complained that Jane Roe had not been disciplined for committing the

6

assaults.7 This was the first time that Principal Bridgeman had heard of the incidents involving
the Doe Sisters and of cornholing at SHS. He agreed that the allegations of cornholing involved
“sexual” violations of the Doe Sisters and “appalling” conduct by Jane Roe. He immediately
asked Steve Lykins, who was an Assistant Principal (“AP”) and the school’s Athletic Director
(“AD”), to investigate the matter.8 AP/AD Lykins may have spoken to Coach Bush, but he
otherwise failed to investigate the incident and made no meaningful progress. He did not even
ascertain that Jane Roe was the perpetrator of the incidents.9
On or about November 27, 2012, after learning that Lykins had not undertaken a
meaningful investigation, Bridgeman reassigned the investigation to another Assistant Principal,
Renee Martin. Prior to that date, AP Martin was not aware of any pattern of harassment or
hazing occurring at SHS, nor was she aware of the practice of cornholing by SHS athletes or
other students. AP Martin immediately interviewed the Doe Sisters, Jane Roe, and two other
teammates. Jane Roe admitted that she had attempted to cornhole one or more of the Doe Sisters
and stated that she herself had been cornholed as a freshman. Based on the interviews, AP
Martin believed that Jane Roe had subjected the Doe Sisters to some type of initiation ritual. She
told Jane Roe and the other two teammates that the conduct could be considered hazing and gave

7

The record suggests that Mrs. Doe and Mr. Doe may have disagreed about the correct way to
handle the incidents. Although Mr. Doe initially sought to deal with the matter privately with
Coach Bush (apparently over Mrs. Doe’s vehement objection), Mrs. Doe sought to involve the
administration beginning on November 19, 2012.
8

Lykins served as both an AP and as the school’s AD.

9

Lykins actually denies that Principal Bridgeman asked him to investigate the matter in the first
place, creating a genuine dispute as to what actually happened. Construing the disputed facts in
the light most favorable to the plaintiffs, Lykins was asked to investigate the incident and did
next to nothing.
7

them printed materials concerning hazing. Nevertheless, during her discussion with the Doe
Sisters, AP Martin told the Doe Sisters that they should “keep the issue quiet” and “not let this
get out,” because it would give SHS a “bad name,” Siegel High School is a “family,” and “we
have to protect the Siegel nation.”10 AP Martin did not ask the girls if penetration had occurred.
Even after being told by Jane Roe that she had been cornholed since she was a freshman and
after concluding that the practice might be a form of hazing, AP Martin did not ask the other
teammates she interviewed whether they had been cornholed.
At some point, AP Martin spoke with John Doe and told him that, as a general matter,
“hazing has gone on forever,” but “we haven’t heard anything up at [SHS] about it.”11 Although
the exact sequence of events is not entirely clear, AP Martin spoke with RCBE Attorney Angel
McCloud concerning an appropriate punishment, spoke with Principal Bridgeman, and spoke
with Coach Bush. As best the court can discern from the record, with approval from Principal
Bridgeman and Attorney McCloud, she eventually communicated to Coach Bush that he should
hand out “game suspensions” and that he should inform his team about the incidents and how the
team members should behave going forward.
After speaking with AP Martin, Coach Bush decided to suspend his daughter for the next
game, which was an away game played on November 29, 2012. Jane Roe traveled with the
team, suited up for the game, and did not play. Coach Bush did not tell the team why Jane Roe

10

Notably, all three Doe Sisters independently recalled AP Martin telling them something to this
effect, which the sisters found confusing and dismaying.
11

The plaintiffs attempt to mischaracterize AP Martin’s testimony concerning hazing by quoting
her out of context. She considers herself “a big advocate against hazing” and apparently served
on a national anti-hazing commission. As the context of her testimony makes clear, AP Martin
was aware that hazing had gone on for a long time in other schools, but she was not previously
aware of cornholing or that it was taking place at SHS.
8

did not play. In fact, Jane Roe told the team that she sat out the game because her back was
bothering her, and no one attempted to disabuse the team of this false representation. Once
again, Coach Bush did not address the incidents with the team.12
On December 2, 2012, Mr. and Mrs. Doe emailed Principal Bridgeman to complain about
the lack of meaningful discipline in response to their complaints. Principal Bridgeman told them
that he would look into the matter, although he apparently took no further actions. At some point
before SHS’s Christmas break (perhaps on or about December 18, 2012), John Doe contacted
RCBE Director of Schools Don Odom to complain about how SHS had handled the incidents
involving his daughters. He reported that Jane Roe had penetrated his daughters “anally.”
Notwithstanding the Doe family’s repeated complaints over the past two months, this was the
first time that Odom had heard of the incidents. He immediately asked two “complaint
managers,” Paula Barnes and Attorney McCloud, to investigate the matter. 13 Under school
policy, complaint managers should have been notified much earlier, likely within 24 hours of
Mr. Doe’s report to Coach Bush on November 2, 2012, or at a minimum within 24 hours of Mrs.
Doe’s report to Principal Bridgeman on November 19, 2012.14 Furthermore, conduct that is

12

Jane Doe testified that Coach Bush did not address the team in any fashion. By contrast, some
witnesses recall that, at most, Coach Bush spoke to the team at a high level of generality that
they should cease engaging in unspecified “inappropriate conduct.” The court credits Jane Doe’s
recollection for purposes of the motion.
13

McCloud received word of the incident on or about November 27, 2012, just eight days after
Principal Bridgeman was notified of the incident by Mary Doe and her sister, and approximately
25 days after John Doe had reported the issue to Coach Bush (albeit under a promise of secrecy).
As best the court can discern, McCloud was not formally identified as a “complaint manager”
under school policy when she first looked into the incident in late November 2012.
14

An internal report would have triggered an immediate preliminary investigation, an interview
of the aggrieved student(s) within five school days, a written report to the Director of Schools
9

criminal or “may have the potential to be criminal in nature” must be reported to the “appropriate
administrator” and then to the Central Office of the Board of Education. At deposition, Coach
Bush acknowledged that the Doe Sisters’ allegations were serious and that Jane Roe’s actions
could have constituted a “sexual violation.” Principal Bridgeman and AP Martin also reached a
similar understanding of the incident in November 2012. Arguably, none of these school
officials complied with school policy in responding to the complaints.
In the December 2012 meeting with Mr. Odom, John Doe recommended that Director
Odom send a notice to parents of other student athletes at SHS, notifying them of the incident
and encouraging them to report any similar incidents. Mr. Odom agreed that this was a good
idea and directed Attorney McCloud to draft a letter to that effect. McCloud drafted the letter
and forwarded it to Principal Bridgeman at SHS on December 18, 2013.15 McCloud emailed
John Doe to inform him that the letter would go out over the holiday break. Although Principal
Bridgeman stated that he would send out the letter, he claims that he forgot to send it.
On December 23, 2012, Coach Bush sent Principal Bridgeman an email recounting an
incident that occurred the previous day, when John and Mary Doe verbally assaulted Mary Roe

(i.e., Odom) within 39 days of the complaint, and a written decision from the Director of Schools
concerning the Complaint within five school days. School policy indicates that it is important
not to identify the complainant(s) in most circumstances. School policy also defines as a “level
three offense” any act “that is directly against a person or property but whose consequences do
not seriously endanger the health or safety of others.”
15

The letter would have stated that SHS had recently received reports of hazing among the
members of the girls’ basketball team, that the reported incidents had been investigated and the
“participants . . . disciplined appropriately,” that any parents who believed that their children had
been the victim of hazing should report it as soon as possible, that students who participate in
hazing would be suspended from games and practices, and that repeated incidents would result in
suspension.
10

(Coach Bush’s wife) and some other parents. According to Coach Bush’s wife, Mary Doe
approached her at an away game and began yelling at her about the punishment (or lack thereof)
that Jane Roe had received. According to Mary Roe, after she got up from her seat to leave,
Mary Doe followed her into the lobby and continued to yell at her. At some point, John Doe
joined the scene and may have accused Jane Roe and other members of the team of being
“sexual predators.”
It appears that, despite its assurances to the Doe family, the school did not undertake any
further actions following the pre-holiday break discussions. Ms. Barnes was supposed to have a
follow-up meeting with John and Mary Doe. Despite acknowledging that the allegations were
“serious,” Barnes did not interview John and Mary Doe until February 2013. Notably, after
Coach Bush learned that the Doe Sisters had contacted the administration, Jane Doe and June
Doe’s playing time was reduced.16
On or about January 28, 2013, Director Odom learned that Bridgeman had not sent the
notification letter. Odom recalls that he verbally reprimanded Bridgeman for not sending the
letter, although Bridgeman does not recall being disciplined in any way. Remarkably, Director
Odom decided not to send the letter at that point, believing that too much time had elapsed from
the date of the underlying incidents.
In late January 2013, John and Mary Doe met with Director Odom to explain their
continued dissatisfaction with the lack of disciplinary action that SHS had taken regarding Jane
Roe and the failure to alert the team or the school about incidents of harassment, initiation, or

16

As explained herein, the RCBE and Coach Bush contend that the reduction in playing time
was entirely coincidental and was in fact based on decisions by Coach Bush that had nothing to
do with the Doe family’s complaints about him or his daughter.
11

hazing. Odom therefore directed Barnes and McCloud (apparently for the third time) to
investigate the incident promptly. This time, at least, Barnes and McCloud took immediate
action: on February 1, 2013, they finally met with John and Mary Doe and, on February 4, 2013,
they conducted interviews of school administrators, basketball coaches, school resource officers,
the Doe Sisters, and all other students whose names John and Mary Doe had identified as being
involved in the alleged hazing. According to Barnes, during her interview, Jane Doe reported
that Jane Roe stuck her “finger up [Jane Doe’s] butt,” which Barnes did not believe rose to the
level of assault or was otherwise offensive. Among other things, Jane Roe also reported to
Barnes that this activity “[g]oes on in [the] hallways” at SHS.
At some point before February 5, 2013, Coach Bush received a letter from a doctor who
had been treating Jane Doe for bilateral lower leg pain related to tibial periostitis, which was
causing extreme pain. The letter advised that, “over the next several days to weeks . . . [,] she
avoid any high-impact (running/jumping) or conditioning activities over this time period.” On
February 5, 2013, Jane Doe provided Coach Bush a letter from another treating physician. The
letter stated that Jane Doe “was receiving medical care from me on 02/05/13 and may return to
school/work on 02/07/13,” and advised the reader to “EXCUSE [Jane Doe] FROM SCHOOL
PRACTICE AND GAMES UNTIL SYMPTOMS RESOLVE.” Consistent with the letter’s
instructions, Jane Doe did not play in the team’s game that night. For medical reasons
(presumably from the ongoing leg issues), Jane Doe did not fully participate in practices on
February 4, 6, and 7. According to Jane Doe, she was “sick” during these practices and simply
rode the stationary bike while her team practiced on the court and did wind sprints. It appears
that she often rode the bike during practices due to her health issues and still played as a full
participant in subsequent games.
12

On February 8, 2013, the SHS girls’ basketball team played their final regular season
game, which was billed as a “Senior Night,” when the seniors on the team were traditionally
acknowledged in a post-game ceremony. By that point, no one had informed Coach Bush that
Jane Doe’s symptoms had resolved. Jane Doe, who was the only senior on the team, also
informed Coach Bush that she did not want to be recognized in the postgame ceremony because
she did not plan to graduate with the team. Jane Doe dressed for the game but Coach Bush
decided not to play her. Coach Bush avers that he decided not to play Jane Doe because she had
not fully participated in the February 4, 6, and 7 practices, had not played in the February 5, 2013
game, and had not informed him that her symptoms had resolved. Jane Doe believed that she
had not “missed” any practices and did not know why Coach Busy did not play her that night.
Evidence in the record shows that, with Coach Bush’s knowledge of her injuries, Jane Doe had
played with the team despite a physician’s note on prior occasions. Also, Jane Doe testified that
she spoke with Coach Seals about whether the coaches planned to play her that night, so that she
could know whether to tape her legs (in preparation to play). When Coach Seals told her he was
not sure, she taped her legs to prepare to play. Also, during the Senior Night game, Coach Bush
did not start June Doe, even though she typically started games for SHS and generally played
nearly the entire game each time.
Coach Bush’s decision not to play Jane Doe and not to start June Doe precipitated a
postgame altercation. Jane Doe left the court in a huff, cleaned out her locker, and left the
premises. Mary Doe, incensed by Coach Bush’s decision not to play Jane Doe, attempted to
enter into the girls’ locker room to search for Jane Doe (not realizing that she had already left)
and to confront the coaches. The coaches told her she could not enter, which led to a verbal
altercation. June Doe approached her mother and escorted her into the hallway. June Doe and
13

Sally Doe left the premises without cleaning out their lockers. When the coaches told her that
she needed to leave, Mary Doe cussed at them and walked away, then walked up to AP Martin in
the hallway, introduced herself, and criticized AP Martin for failing to do anything about what
had happened to her daughters. After a school resource officer approached Mary Doe, she stated
“Don’t lay your hands on me. I know my rights,” and started walking out. She also said in a
raised voice that “[t]his is bloody bulls*t, sexual assault, and you all sweep it under the carpet.”
She made similar comments outside the school as well, adding something to the effect of, “If it
was your kid you’d do something about it.”
On February 11, 2013, Attorney McCloud sent a formal letter to John and Mary Doe
detailing the results of the investigation. As set forth in the letter, the investigation concluded
that “there was no physical harm or endangerment that resulted from this conduct,” that “the
behavior was discontinued after the conduct was reported,” that the behavior “can best be
described as inappropriate horseplay,” and that “the disciplinary action taken was appropriate
considering the totality of the circumstances” under the school’s definition of hazing,
discrimination, harassment, and bullying. Separately, on the same date, Principal Bridgeman
wrote a letter to John and Mary Doe to inform them that the school and the RCBE had decided to
ban them from SHS property and to ban them from attending basketball games at other RCBE
schools, based on their “assaulting and threatening behavior towards students and staff” at a
recent game, presumably referring to the February 8, 2013 game.17 At deposition, Director
Odom could not provide a cogent explanation as to why John Doe was banned from school
property along with his wife. At any rate, on that date, the Doe family went to the police to press

17

John Doe testified that neither he nor his wife had engaged in assaulting or threatening
behavior on February 8, 2013.
14

charges against Jane Roe. They at least spent several hours on February 11 speaking with the
police, and may have spent time speaking to the police later that week, as well.
Between February 11 and February 14, 2013, the Doe Sisters did not appear for practice
and did not contact Coach Bush. Jane Doe admits that she quit as of February 8, 2013, but the
remaining sisters did not believe that they had quit, nor did they tell anyone that they had quit.18
Although Coach Bush alleges that the Doe Sisters “quit” the team, he affirmatively told Principal
Bridgeman to remove the Doe Sisters from Coach Bush’s seventh period class (which the team
members normally attended on game days) and to suspend them indefinitely from the team. At
some point after the February 8, 2013 game, someone removed Sally Doe’s school books from
her locker and placed them in front of the locker room.
SHS was scheduled to play in the first game of a district tournament on February 15,
2013. In the afternoon before that game, Principal Bridgeman emailed Mr. and Mrs. Doe to
inform him that “Coach has decided to remove [June Doe] and [Sally Doe] from his 7th period
Basketball class.” Principal Bridgeman also separately informed June Doe and Sally Doe that
they had been suspended from the basketball team and removed from the 7th period basketball
class.
Jane Doe quit SHS on February 15, 2013, claiming that she “just couldn’t take it
anymore” and “had to get out of there.” June Doe decided to leave SHS after Principal
Bridgeman told her that she had been kicked off the basketball team. Mr. and Mrs. Doe also

18

The record contains some “tweets” from June Doe that arguably reflect her belief that she had
quit the team. Although the texts are highly suggestive, they are not definitive on this point, and
it will be for the jury to decide how best to construe them.
15

determined that, in light of the school’s failure to respond adequately to their concerns about
harassment of their daughters, the daughters should be moved out of SHS.
In May 2013, Jane and June Doe received homeschool high school diplomas under the
auspices of homeschool provider Bellwood Christian Academy. They admit that (1) they would
not have received their diplomas any earlier if they had remained at, and graduated from, SHS,
and (2) the BCA degree is given the same force and effect as a diploma from a “brick and
mortar” school like SHS. In approximately May 2013, Jane Doe and June Doe were given offers
to play for a college in Florida on scholarship. Jane Doe apparently accepted the offer initially,
but was unable to follow through on the commitment because of brain swelling. Nevertheless,
she has a standing offer to play for that college and two other colleges (located in Ohio and
Tennessee). As to June Doe, she declined the offer to play for the Florida college because her
sister was unable to attend. John Doe admitted at deposition that, although he speculates that
Jane Doe’s opportunities to play college basketball were impaired by her early withdrawal from
SHS, he has no way of knowing whether his belief is true. John Doe also believes that, if June
Doe had stayed at SHS and graduated in 2014 (rather than 2013), she would have had additional
scholarship opportunities, but he had not specifically asked any college coaches whether June
Doe’s early withdrawal from SHS (and early homeschool graduation in 2013) impacted their
decision whether to offer her a scholarship.
Sally Doe finished out her freshman year at SHS. At the end of the 2012-13 school year,
she transferred to Stewart’s Creek High School and, assuming that she meets all of her
requirements, she will graduate from that institution at the same time she would have graduated
from SHS.

16

According to at least one SHS student, cornholing has taken place on the soccer team and
volleyball team.19 Jane Roe also testified that students in general at the school had engaged in
cornholing since her freshman year. Jane Roe also testified that, sometime prior to the incidents
at issue in this case, members of the girls’ basketball team had “put stuff” in her hair when she
sleeping. Neither the referenced SHS student nor Jane Roe testified that school officials were
aware of these practices until the Doe family reported the cornholing incidents to SHS officials
in November 2012.
At least some SHS students viewed, and continue to view, the practice of cornholing as
an acceptable type of “practical joke.” In fact, one SHS girls’ basketball team player testified
that she believed that, if two people are friends and are “joking around” with each other, it would
not be offensive for one friend to insert her finger or thumb into the anus of the other person
without permission. The student also expressed that, in general, it would be unreasonable for
someone to be offended by that conduct if it was done “in a joking way.”
In an effort to show that they were treated unfairly, the plaintiffs have identified several
examples of how the RCBE handled complaints of discrimination or other forms of harassment
within the RCBE’s school system. The court will address these examples in the relevant section
herein.
SUMMARY JUDGMENT STANDARD

19

The student testified that she had “heard about” the activity also taking place on the basketball
team from a friend of hers. That statement is inadmissible hearsay with respect to the truth of the
matter asserted. The plaintiffs also purport to reference additional testimony from this student
related to incidents of cornholing, but the deposition excerpts filed do not include the correct
pages. Also, the plaintiffs purport to reference certain portions of the deposition of Angel
McCloud, but the plaintiffs failed to file a copy of the relevant deposition testimony. (See
Docket No. 95 at Fact No. 128.)
17

Rule 56 requires the court to grant a motion for 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). If a moving defendant shows that there is no genuine issue
of material fact as to at least one essential element of the plaintiff’s claim, the burden shifts to the
plaintiff to provide evidence beyond the pleadings, “set[ting] forth specific facts showing that
there is a genuine issue for trial.” Moldowan v. City of Warren, 578 F.3d 351, 374 (6th
Cir. 2009); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). “In evaluating the
evidence, the court must draw all inferences in the light most favorable to the non-moving
party.” Moldowan, 578 F.3d at 374 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986)).
At this stage, “‘the judge’s function is not . . . to weigh the evidence and determine the
truth of the matter, but to determine whether there is a genuine issue for trial.’” Id. (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). But “[t]he mere existence of a
scintilla of evidence in support of the [non-moving party’s] position will be insufficient,” and the
party’s proof must be more than “merely colorable.” Anderson, 477 U.S. 242, at 252. An issue
of fact is “genuine” only if a reasonable jury could find for the non-moving party. Moldowan,
578 F.3d at 374 (citing Anderson, 477 U.S. at 252).
ANALYSIS
I. Title IX Discrimination Claims
A. Discrimination Standard
In relevant part, Title IX provides that “[n]o person shall, on the basis of sex, be excluded
from participation in, be denied the benefits of, or be subjected to discrimination under any
educational program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681. In
18

Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629 (1999), the Supreme Court established that
Title IX can support a claim against a federal funding recipient premised on student-on-student
harassment, provided that the plaintiff demonstrates the following elements:
(1) The sexual harassment was so severe, pervasive, and objectively offensive that it
could be said to deprive the plaintiff of access to the educational opportunities or
benefits provided by the school,
(2) The funding recipient had actual knowledge of the sexual harassment, and
(3) The funding recipient was deliberately indifferent to the harassment.
Vance v. Spencer Cnty. Public Sch. Dist., 231 F.3d 253, 258-59 (2000) (citing Davis, 526 U.S. at
653).
B. First Element: Severe, Pervasive, and Objectively Offensive
For purposes of summary judgment only, the defendant concedes that Jane Roe’s conduct
was objectively offensive. However, it argues that, relative to each of the Doe Sisters, that
conduct was not “severe and pervasive.”
With respect to severity, there is a genuine dispute of material fact as to whether the
incidents on October 29 and November 2, 2012 were “severe.” Although none of the Doe Sisters
sought medical or mental health treatment from the incidents, inserting (or attempting to insert) a
finger in another person’s rectum or vagina reasonably could be construed as a “sexual” act that
is a severe violation of an individual’s body and personal privacy. Indeed, administration
officials testified that they found the actions shocking, sexual in nature, or otherwise appalling.
Of course, the RCBE may be able to convince the jury that Jane Roe’s actions were a practical
joke, that they involved only a de minimis violation of the Doe Sisters’ bodies, and that they
were essentially acts of “inappropriate horseplay” (as the school characterized it).

19

With respect to pervasiveness, the issue is a closer call. The Doe Sisters were not
cornholed, or threatened with cornholing, after their father reported the matter to Coach Bush.
On the other hand, other girls on the team continued to engage in this practice and did so in front
of the Doe Sisters. In one instance, two teammates may purposely have faked engaging in the
practice to mock the Doe Sisters in some way. Furthermore, the Doe Sisters were required to
continue playing alongside the perpetrator of these incidents, whose father (Coach Bush) did not
punish her in front of the team, did not explain to the team what had happened or why it should
never happen again, and in fact promoted his daughter to team captain, despite knowing that she
had sexually assaulted the Doe Sisters. From the team’s perspective (other than the Doe Sisters),
Jane Roe sat out a game because her back hurt, nothing untoward had occurred, and no one was
told to cease attempting to cornhole the Doe Sisters or each other. From the Doe family’s
perspective, the entire incident was “swept under the rug” by Coach Bush and the administration,
the perpetrator was rewarded with a captainship, and no one informed the team or the student
body that cornholing each other on the school premises was an inappropriate form of sexual
harassment, whether done so “jokingly” or with malicious intent. Furthermore, evidence shows
that hazing practices were occurring on multiple teams at SHS for at least the past few years.
Under the circumstances, a reasonable jury could conclude that cornholing or similar initiation
practices were pervasive at SHS (or at a minimum within the girls’ basketball team) and that the
prospect of future harassment pervaded the Doe Sisters’ educational experience. Indeed, to this
day, at least some students on the team still do not appreciate that the act of cornholing another
person is an inappropriate sexual act.
On the other hand, the defendant has strong arguments as to why the conduct at issue was
not “pervasive.” The Doe Sisters were not subjected to bullying or harassment after the matter
20

was reported. Also, there is no indication that, prior to the Doe Sisters’ complaints, the coaches
or administration were aware of cornholing taking place at SHS in the first place. Although it a
very close call concerning “pervasiveness,” the court finds sufficient evidence to create a
genuine dispute of fact on this element.
As to whether the harassment at issue deprived the Doe Sisters of educational
opportunities at the school, it is again a close call. The Doe Sisters have provided only limited
evidence concerning how the sexual harassment itself forced them to quit, or deprived them of
full opportunities on, the basketball team; indeed, they testified that the sexual harassment by
Jane Roe and her lack of punishment was only one of several factors that led them to quit.20
Other factors, such as taunting at school (seemingly unrelated to Jane Roe’s actions), feeling
“singled out” as foreigners, and Coach Bush’s reduction in the older sisters’ playing time (as
opposed to the underlying harassment itself) seem to have played a part in their decisions to
leave SHS.21 The defendant also points out that Jane Doe and June Doe stayed on the team and

20

The plaintiffs argue that testimony from Susan Hunt, Mary Doe’s sister-in-law, supports their
claims. The plaintiffs’ factual assertions concerning Ms. Hunt’s testimony are spurious. For
example, based on Hunt’s testimony (at page 28 of her deposition), the plaintiffs assert that “Jane
[Doe] cries every few days, and all of the Sisters have been upset to the point of crying over
these events.” (Docket No. 49 at Fact No. 165.) The underlying testimony establishes no such
thing: on the referenced page, Hunt simply testified that, on one occasion, she spoke with Mr.
Doe on the phone about the incident and heard his daughters crying in the background.
Plaintiffs’ counsel’s attempt to mislead the court – or its failure to cite testimony in the record
that actually supports the factual assertions – in an effort to survive summary judgment is
inappropriate and in violation of Local Rule 56.01.
21

As explained in the next section, the plaintiffs contend that Coach Bush retaliated against the
Does for reporting and pressing their harassment claims against his daughter by reducing Jane
Doe and June Due’s playing time, humiliating Jane Doe on Senior Night by not playing her, and
by kicking the youngest two sisters off the team. If true, these actions would tend to support a
Title IX retaliation claim rather than a Title IX discrimination claim.
21

at the school for several months after the October/November 2012 incidents, with negligible
interruption to their daily routine, and that Sally Doe in fact finished out the school year.
On the other hand, a reasonable jury could find that the girls justifiably lost faith in their
school and the RCBE to protect them against unwanted harassment. Although the Doe Sisters
stayed on the team and at school well after the incidents, their family also received repeated
assurances during that time period that the harassment they experienced would be investigated
and punished accordingly as a deterrent to future forms of harassment or hazing – first from
Coach Bush, then from Principal Bridgeman, then from Director Odom. It would be somewhat
perverse for the court to find that, as a matter of law, the Doe Sisters’ claims should be
extinguished because they attempted to “stick it out” while their coach, the school, and the
County continued to assure their parents that the school would respond appropriately.
The court acknowledges that the circumstances concerning Sally Doe, who finished the
school year before transferring out of SHS, are distinct from those of her sisters. Mr. and Mrs.
Doe believe that Sally was “forced” to transfer schools at the end of the season. The causal
relationship between the RCBE’s alleged deliberate indifference to the sexual harassment claims
(as opposed to actions that the Doe family believes were retaliatory) and Sally Doe’s transfer is,
at a minimum, more attenuated than the causal relationship posited by her sisters. Depending on
the testimony adduced at trial, a directed verdict on Sally Doe’s discrimination claim may be
appropriate. Based on its understanding on the existing record, however, the court finds that
there is sufficient evidence to create a genuine dispute of material fact as to whether the alleged
deliberate indifference caused Sally Doe to be deprived of educational opportunities.
C. Actual Knowledge

22

Repeated harassment complaints to school officials can satisfy the actual knowledge
element. Vance, 231 F.3d at 259.
Here, there is no evidence in the record that any official at SHS or within the RCBE had
any knowledge that cornholing was taking place at SHS before the Doe family reported it to
Coach Bush on November 2, 2012. Nevertheless, the facts of this case involve the peculiar
circumstance in which, despite school policy, the Doe family’s reports of harassment only went
“up the ladder” because the Does continued to report the incidents at higher levels within the
school and county administration. Coach Bush had actual knowledge of the sexual harassment
allegations as of November 2, 2012, but did not report them (albeit in compliance with Mr.
Doe’s request). Principal Bridgeman had actual knowledge of the allegations as of November
19, 2012, and acknowledged their seriousness, yet failed to alert the Director of Schools or the
authorities. Director Odom did not have actual knowledge until mid- to late-December 2012.
In light of the peculiar factual circumstances presented, a reasonable jury could conclude
that, until the complaints moved up the proper channels, the Doe Sisters faced the prospect of
additional harassment or at least the indignity, intimidation, and justifiable discomfort of being
forced to play alongside their alleged harasser and under the coach/father who seemed to be
protecting her. Thus, the defendant’s foot-dragging in violation of school policy, which endured
for months and at multiple administrative levels, could be construed as a failure to remedy harms
that continued to accrue even after the incidents first took place. For example, in Mathis v.
Wayne Cnty. Bd. of Educ., 2011 WL 332066 (M.D. Tenn. Aug. 2, 2011), the student’s parents
reported the underlying incidents of sexual harassment, there was little to no evidence of further
incidents of harassment in the weeks following the report, and the student’s parents ultimately
withdrew their son from school in light of the school’s failure to discipline the perpetrators
23

appropriately. Id. at *2-*8. Under these factual circumstances, which are substantially similar to
those presented here, this court upheld the jury’s verdict, and the Sixth Circuit affirmed the
court’s ruling on appeal. See Mathis v. Wayne Cnty. Bd. of Educ., 496 F. App’x 513 (6th Cir.
2012).
Although it is again a close call, the court finds that the plaintiffs have produced
sufficient evidence to a support a finding of “actual knowledge.”22
D. Deliberate Indifference
With respect to the third element, the RCBE can only be held liable for damages where it
“intentionally acted in clear violation of Title IX by remaining deliberately indifferent to known
acts of harassment.” Id. at 260 (citing Davis, 526 U.S. at 642). The deliberate indifference must,
at a minimum, cause students to undergo harassment or make them liable or vulnerable to it.
Vance, 231 F.3d at 260 (citing Davis, 526 U.S. at 645). Deliberate indifference is shown “only
where the recipient’s response to the harassment or lack thereof is clearly unreasonable in light
of the known circumstances.” Vance, 231 F.3d at 260 (citing Davis, 526 U.S. at 648). By
reference to Davis, the Sixth Circuit explained the limitations on a deliberate indifference claim
premised on peer-to-peer harassment as follows:
The recipient is not required to “remedy” sexual harassment nor ensure that
students conform their conduct to certain rules, but rather, the recipient must
merely respond to known peer harassment in a manner that is not clearly
unreasonable. The deliberate indifference standard does not mean that recipients
can avoid liability only by purging their schools of actionable peer harassment or
that administrators must engage in particular disciplinary action. The standard
does not mean that recipients must expel every student accused of misconduct.
Victims do not have a right to particular remedial demands. Furthermore, courts

22

To the extent that the RCBE is arguing that actual knowledge of cannot support a finding of
deliberate indifference unless there is actual prior knowledge of the particular type of incident at
issue, the Sixth Circuit’s affirmance in Mathis strongly suggests otherwise.
24

should not second guess the disciplinary decisions that school administrators
make.
The Supreme Court has pointedly reminded us, however, that this is not a mere
“reasonableness standard” that transforms every school disciplinary decision into
a jury question. In an appropriate case, there is no reason why courts on motion
for a directed verdict could not identify a response as not “clearly unreasonable”
as a matter of law.
Id. (internal citations and case quotations omitted). By the same token, the mere fact that a
school does “something” in response to a harassment claim does not per se insulate it from
liability under Title IX. Id. “[W]here a school district has knowledge that its remedial action is
inadequate and ineffective, it is required to take reasonable action in light of those circumstances
to eliminate the behavior. Where a school district has actual knowledge that its efforts to
remediate are ineffective, and it continues to use those same methods to no avail, such district
has failed to act reasonably in light of the known circumstances.” Id. The Supreme Court and
the Sixth Circuit have also approvingly cited the Office of Civil Rights’ Title IX Guidelines,
which state that, in response to known sexual harassment, a district “should take immediate and
appropriate steps to investigate or otherwise determine what occurred and take steps reasonably
calculated to end any harassment, eliminate a hostile environment, and prevent harassment from
occurring again.” Vance, 231 F. at 261 n. 5 (quoting 62 Fed Reg. 12034, 12042 (1997)).
Here, there is ample evidence in the record to support a finding that employees of the
RCBE or SHS were deliberately indifferent to the Does’ repeated complaints of harassment. The
RCBE contends that it was not “clearly unreasonable” for Coach Bush to keep the matter private
in light of Mr. Doe’s instructions, for Principal Bridgeman to rely on AP Martin’s investigation
and report in November 2012, or for Director Odom to rely on the report and recommendations
of his appointed complaint managers in February 2012. On the other hand, the record shows that
25

Coach Bush and Principal Bridgeman may have violated school harassment reporting policies by
failing to report the incidents correctly, that school officials dragged their feet for months in
response to potentially serious allegations of sexual harassment, that AP Martin told the Doe
Sisters to keep the matter secret so as not to damage SHS’s reputation, and that the school did
not attempt a formal investigation until (a) the basketball season was nearly over, and (b) the
Does’ repeated complaints began to boil over. It is also notable that AP/AD Lykins failed to
investigate the incident adequately, that the perpetrator of the incident received only insubstantial
and private discipline for her conduct, and that Coach Bush promoted Jane Roe to captain even
after the allegations came out. Furthermore, it is difficult to fathom why the administration
never formally informed at least the girls on the basketball team and their parents – let alone the
rest of the student body – about the incidents and their inappropriateness at any point in the
nearly fourteen weeks that elapsed between the incidents and the date the Doe Sisters left the
team.
In light of these facts, a jury reasonably could agree with the basic premise of the Does’
theory of the case: SHS and the RCBE placed SHS’s reputation and the interests of the girls’
basketball team over the Doe Sisters’ interests, and SHS and RCBE officials consequently did
their best to “cover up” the incidents and ensure that they were not publicized.
On the other hand, a jury might agree with the defendant that SHS and the RCBE
appropriately responded to the allegations (or at least that the response was not “clearly
unreasonable”), that the limited discipline imposed on Jane Roe successfully prevented the Doe
Sisters from suffering further acts of harassment, that Mr. Doe and, in particular, Mrs. Doe’s
conduct became increasingly unreasonable, and that the Does’ grievances were more about

26

seeing justice served on Jane Roe than on protecting the daughters from further sexual
harassment. A jury will need to decide which side is correct.
Finally, although the court would find a genuine dispute of material fact based on the
aforementioned evidence alone, the plaintiffs have produced evidence that SHS or the RCBE
may have treated other, arguably equivalent, instances of harassment much more seriously. For
example, in 2005, after a male student sexually assaulted a female student by touching or
pinching her, AP Martin remanded that student to an alternative school within “a day or two.”
AP/AD Lykins recalled an instance in which a student was called “discriminatory” names by
three other male students without a physical component to the harassment; the school suspended
two of the perpetrators from school and sent the other to an alternative school. Also, AP/AD
Lykins recalled an incident in which the school discovered, while reviewing surveillance video
for another purpose, that a freshman boy (who was clothed) placed his “private parts” close to a
girl and “asked for oral sex.” Although the girl had not complained, the school sent the boy to an
alternative school after learning about the incident. In these instances, the school seemed to
“bring the hammer down” on acts of harassment that were arguably equivalent to or less serious
than the harassment experienced by the Doe Sisters. In light of these examples, a jury could
conclude that, by (arguably) slow-walking its investigation(s) and giving Jane Roe only a private
“slap on the wrist,” SHS and the RCBE essentially attempted to sweep Jane Roe’s conduct under
the rug because of her and her father’s connections within the school and the athletic
department.23

23

The plaintiffs have attempted to provide other examples of how the administration has
responded to harassment allegations. The defendant generally contends that all of these
examples are irrelevant and that some of them are not supported by admissible evidence. The
court finds that it will be more appropriate to resolve the admissibility of these examples through
27

II. Retaliation
A. Legal Standard for Title IX Retaliation Claims
In a recent published case, the Sixth Circuit found that retaliation claims under Title IX
are analyzed using the same standards as Title VII retaliation claims. Fuhr v. Hazel Park Sch.
Dist., 710 F.3d 668, 673 (6th Cir. 2013); see also Nelson v. Christian Bros. Univ., 226 F. App’x
448, 454 (6th Cir. 2008) (“Generally, the courts have looked to Title VII, 42 U.S.C. §§ 2000e, as
an analog for the legal standards in both Title IX discrimination and retaliation claims.”) Prior to
the Supreme Court’s decision in Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517 (2013),
the Sixth Circuit had construed Title VII’s anti-retaliation provision, § 2000e-3(a), as
establishing a “motivating factor” standard of causation for Title VII retaliation claims. See, e.g.,
Bobo v. United Parcel Serv., 665 F.3d 741, 756-57 (6th Cir. 2012) (analyzing Title VII
retaliation claims under motivating factor causation standard); Fuhr, 710 F.3d at 673 (applying
“motivating factor” standard to Title VII and Title IX retaliation claims). However, in Nassar,
the Supreme Court held that, based on the specific language of § 2000e-3(a), Title VII retaliation
claims are governed by a “but for” causation standard. The Court found that the language
utilized in each statute matters and held, in essence, that it was error to paint them all with the
same brush without conducting statute-specific analyses. The decision effectively abrogated the
application of the motivating factor test to Title VII claims in cases such as Fuhr.

full briefing in the context of motions in limine. With respect to the three examples referenced in
the text of this section, the defendant challenges them only on the basis of relevance. Without
making any definitive ruling on their admissibility, these particular examples strike the court as
relevant to the issue of deliberate indifference, although the court will of course consider the
defendant’s arguments to the contrary in advance of trial.
28

In the wake of Nassar, what are the implications for the causation standard applicable to
Title IX claims? The answer is not self-evident. On the one hand, if this court is obligated to
“look” to current Title VII jurisprudence when determining the causation standard for a Title IX
retaliation claim, then but for causation would now apply, notwithstanding Fuhr and previous
Sixth Circuit cases finding otherwise. On the other hand, the lesson in Nassar was that the
causation standard for claims under particular federal anti-discrimination and anti-retaliation
statutes must be statute-specific. Further complicating the issue is the fact that Title IX does not
include an express anti-retaliation provision – thus, there is not a specific Title IX anti-retaliation
provision for the court to interpret. See Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 175
(2005) (“Title IX’s cause of action is implied, while Title VII’s is express.”) It appears that at
least two district courts have acknowledged the issue without expressly resolving it. Meyers v.
Cal. Univ. of Penn., 2014 WL 3890357, at *12-*13 (W.D. Pa. July 31, 2014); Miller v. Kutztown
Univ., 2013 WL 6506321, at *3 (E.D. Pa. Dec. 11, 2013).
This court also recognizes another potential complicating factor. Title VII originally did
not include a section delineating the causation standard for discrimination claims, simply stating
that it was unlawful to discriminate against an employee “because of” that employee’s race,
color, religion, national origin, sex, or national origin – five “status”-based categories. See
Nassar, 133 S. Ct. at 2526. After the Supreme Court construed Title VII as establishing a “but
for” causation standard for discrimination claims in Price Waterhouse v. Hopkins, 490 U.S. 228
(1989), Congress amended Title VII to add a separate provision, § 2000e-2(m), which
specifically states that status-based discrimination claims are subject to a “motivating factor”
standard of causation – effectively abrogating Price Waterhouse as it related to that particular
issue. Nassar, 133 S. Ct. at 2525. Thereafter, in Gross v. FBL Fin. Servs., Inc., 557 U.S. 167
29

(2009), the Court considered the causation standard for discrimination claims under the ADEA,
which prohibits discrimination “because of” an individual’s age. In part because Congress had
amended other parts of the ADEA without adding a provision equivalent to Title VII’s § 2000e2(m), a majority of the Court agreed that “because of” established a “but for” causation standard
for ADEA discrimination claims. Nassar, 133 S. Ct. at 2528 (discussing Gross). In Nassar, the
Supreme Court considered the meaning of “because of” within Title VII’s retaliation provision,
which states that it is unlawful for an employer to discriminate against an employee “because”
that employee engaged in protected activity. Id. (citing § 2000e-2(m)). Unlike Title VII’s
status-based anti-discrimination provision, there is not a separate section articulating a causation
standard for Title VII retaliation claims. The Court construed this difference as significant and
held that, like the meaning of “because” within the ADEA’s anti-discrimination provision, the
word “because” within Title VII’s anti-retaliation provision similarly establishes a “but for”
standard of causation.
Here, it is unclear what it means to “look” to Title VII with respect to retaliation claims
after Nassar. Congress specifically amended Title VII in 1991, which the Supreme Court (in
2013) believed created a divergence between the causation standards for discrimination claims
(subject to a “motivating factor” standard) and retaliation claims (subject to a “but for” causation
standard). Should the federal courts’ construction of Title IX, which contains no express
retaliation provision, simply track the Court’s interpretation of Title VII as informed by
intervening statutory amendments to Title VII?
The parties have not addressed these potential complexities in their briefing, although the
plaintiffs appear to assume that, based on pre-Nassar Sixth Circuit precedent, the pre-Nassar
“motivating factor” standard applies. Because the claims would proceed even under the more
30

stringent “but for” causation standard, the court need not resolve the issue at this stage. The
court expects that parties will either reach agreement on the appropriate causation standard or, if
the issue is disputed, to brief the issue in advance of trial.
At any rate, regardless of the appropriate causation standard, Nassar did not disturb Sixth
Circuit precedent that the McDonnell Douglas burden-shifting framework governs the
sufficiency of the evidence at the Rule 56 stage as to Title IX claims premised on circumstantial
evidence.24
B. Direct Evidence
Direct evidence is evidence that, if believed, requires the conclusion that retaliatory
animus played a part in the challenged decision. Weigel v. Baptist Hosp. of E. Tenn., 302 F.3d
367, 383 (6th Cir. 2002).25 The plaintiffs argue that the RCBE has admitted that it removed the
Doe Sisters at least in part because they had filed criminal charges of sexual assault against Jane
Roe. This position draws support from AP Martin’s testimony, in which she conceded that the
“pending threat that there would be criminal charges filed against [Jane Roe]” was one of the
factors that the school relied upon in making the decision to remove the Doe Sisters from the
team. AP Martin also recalled that Coach Bush had told her that he felt that this decision “was
best for the remainder of the girls on the team” with a “tournament game coming up.” In light of

24

Recently, in Hollis v. Chestnut Bend Homeowners’ Ass’n, -- F.3d--, 2014 WL 3715088, at *7*8 (6th Cir. July 29, 2014) (submitted for publication), the Sixth Circuit found that the
McDonnell Douglas burden-shifting framework should only be utilized to analyze the
evidentiary sufficiency of federal statutory claims that require a finding of intent. Although this
may throw into doubt the evidentiary framework applicable to certain types of federal statutory
claims, a retaliation claim under Title IX is not one of them, because it is premised on the federal
funding recipient’s retaliatory intent.
25

Again, the court makes no express finding as to whether the “motivating factor” or “but for”
causation standard applies here.
31

this testimony, there is a genuine dispute of material fact as to whether Coach Bush and the
administration retaliated against the Doe Sisters for pursuing criminal charges by kicking them
off the team.
If the jury credits the plaintiffs’ characterization of the evidence, the causation standard
will be crucial here: if the pending threat of criminal charges was just a motivating factor but not
a “but for” factor, the applicable causation standard may be determinative of the claim. Because
the court finds, as explained in the next section, that the plaintiffs can make out claims based on
circumstantial evidence of discrimination in any case, the court need not determine whether the
direct evidence supports a “but for” theory of causation at this stage.
C. Circumstantial Evidence
To make out a prima facie case, a plaintiff must show: (1) that she engaged in protected
activity; (2) that this exercise of her civil rights was known to the defendant; (3) that the
defendant thereafter took an action adverse to the plaintiff subsequent to or contemporaneous
with the protected activity; and (4) that there was a causal connection between the protected
activity and the adverse action. See Marcum ex rel. C.V. v. Bd. of Educ. of Bloom-Carroll Local
Sch. Dist., 727 F. Supp.2 2d 657 (S.D Ohio 2010). Once a plaintiff establishes a prima facie
case of retaliation, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory
reason for its actions. Id. If the defendant meets its burden of production, the burden shifts back
to the plaintiff to show that the reason given by the defendant was pretextual. Id.
Here, with respect to the plaintiff’s prima facie case, the RCBE argues that the plaintiffs
cannot show an “adverse action” by Coach Bush, SHS, or the RCBE. The plaintiffs’ briefing
concerning their retaliation claims is not a model of clarity. As best the court can discern, the
plaintiffs appear to argue that the following acts or omissions were “retaliatory”: (1) the RCBE’s
32

“lack of response” or “wholly indifferent response” to their complaints; (2) Coach Bush’s failure
to report the sexual harassment immediately after speaking with Mr. Doe; (3) Coach Bush’s or
SHS’s decision to kick the Doe Sisters off the team after they filed a police report; (4) Coach
Bush’s decision not to play Jane Doe on Senior Night; (5) June Doe’s “reluctance” to seek SHS’s
help in dealing with the “slicing” incidents in the hallways; and (6) the defendant’s decision to
ban Mr. and Mrs. Doe from school property, which “reinforced [the RCBE’s] indifference
toward” the Doe Sisters.26 The plaintiffs’ “pea soup” approach to their retaliation claims is
inappropriate, as some of these actions are not even arguably forms of “retaliation” by SHS or its
teachers. As the court construes the record, the only asserted acts supporting a retaliation theory
of liability (as opposed to acts manifesting deliberate indifference to the underlying sexual
harassment claims) are Coach Bush’s alleged reduction of Jane and June Doe’s playing time,
Coach Bush’s decision not to play Jane Doe on Senior Night, the decision (by Coach Bush and
as ratified by others) to remove Jane and Sally Doe from the basketball team, and the school’s
decision to ban Mr. and Mrs. Doe from school property.
With respect to those four grounds for retaliation, the record is muddled with respect to
the “adverse action” element. It is undisputed that Coach Bush reduced Jane and June Doe’s
playing time, although the significance of the reduction is debatable. There is also conflicting
testimony about whether Jane Doe was available to play on Senior Night and her coaches’
awareness of that ability. There is conflicting testimony about whether Jane Doe and Sally Doe

26

The plaintiffs’ statement of facts also references the school’s refusal to support Sally Doe’s
request for a waiver to participate in high school sports the next year. The court previously
denied the plaintiffs’ request for leave to amend their Second Amended Complaint to include a
retaliation allegation premised on that asserted fact. Given the court’s previous denial of the
request for leave, the court will not permit the plaintiffs to introduce those facts through the
“back door.”
33

“quit” the team or whether Coach Bush suspended them. Finally, the RCBE has not provided a
coherent explanation for why the school banned Mr. Doe from school property. Viewing the
facts in the light most favorable to the plaintiffs, the plaintiffs have established that these
incidents involved “adverse actions” by the RCBE or school employees.
As to the causation element, the plaintiffs’ prima facie burden to show a “causal
connection” (among other elements) is a burden “easily met.” See McClain v. Nw. Cmty. Corrs.
Ctr. Judicial Corrs. Bd., 440 F.3d 320, 335 (6th Cir. 2006). Given the timing of the alleged
adverse actions, which came on the heels of the Doe family’s repeated complaints about Coach
Bush’s handling of the incidents and his daughter’s role in them, the plaintiffs have established a
sufficient causal connection between their protected activity and (1) the reduction in playing
time, (2) the refusal to play Jane Doe on Senior Night, and (3) the decision to remove June Doe
and Sally Doe from the basketball team. See Montell v. Diversified Clinical Servs., Inc., -- F. 3d
--, 2014 WL 2898525, at *6 (6th Cir. June 27, 2014) (submitted for publication) (“Where an
adverse employment action occurs very close in time after an employer learns of a protected
activity, such temporal proximity between the events is significant enough to constitute evidence
of a causal connection for the purposes of satisfying a prima facie case of retaliation.”) As to
banning Mr. and Mrs. Doe from school property, the event certainly seems to have been a direct
response to Mrs. Doe’s conduct at the February 8, 2013 game, rather than an attempt to punish
her for complaining to the administration. Be that as it may, the close temporal proximity
between her last complaints to the administration in late January 2013 and early February 2013 is
sufficient to satisfy the low causal connection burden.
The defendant has certainly offered plausible legitimate, non-discriminatory reasons for
each of these actions. They argue that Coach Bush played Jane Doe and June Doe fewer minutes
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towards the end of the season because they were suffering from lingering medical issues. Jane
Doe did not practice or play in games the week of February 4, 2013, and did not formally
represent to Coach Bush that her symptoms had subsided. The school removed June Doe and
Sally Doe from the team after they missed a week of practice without explanation. And the
school banned the parents from school property after receiving reports that Mrs. Doe had
engaged in verbally assaultive conduct both inside and outside of the school premises on
February 8, 2013. These assertions find support in the record and are sufficient to satisfy the
RCBE’s burden of production.
To show pretext, a plaintiff can show (1) that the proffered reason had no basis in fact,
(2) the proffered reason did not actually motivate the defendant’s actions, or (3) the proffered
reason was insufficient to motivate the defendant’s adverse action. As is often the case, the
plaintiffs reference these means of showing pretext but decline to specify which theory or
theories of pretext they are pursuing.27 As best the court can discern, the plaintiffs appear to
pursue a combination of all three. Although it is a very close call, the court finds that that there
are genuine disputes of fact as to whether the defendant’s asserted legitimate, non-discriminatory
reason for each alleged adverse action is in fact a pretext for retaliation. Jane Doe prepared to
play on Senior Night and there is no indication that Coach Bush specifically asked her whether
her medical condition prevented her from playing. Coach Bush may have reduced the Doe
Sisters’ playing time as a result of their repeated complaints about his conduct and that of his
daughter. Although there is contrary evidence in the record, June Doe and Sally Doe may have
intended to return to the team on February 15, 2013, and the administration arguably removed

27

The RCBE’s opening brief addresses the retaliation claim in detail. However, its Reply does
not squarely address the retaliation claims.
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them from the team (1) precisely because they were asserting criminal charges against Jane Roe,
and (2) on grounds (missing practice) that did not justify an indefinite suspension. Finally, given
that Director Odom could not offer a cogent explanation as to why Mr. Doe was banned from
school property, the grounds for banning Mr. Doe (if not Mrs. Doe) are of debatable veracity.
For these reasons, the court finds that the retaliation claims will proceed to trial.
III. Summary
The court will permit the plaintiffs’ discrimination and retaliation claims to proceed to
trial. The court is aware that the defendant has legitimate grounds to contest the substantiality of
the claims by some or of all the Doe Sisters. The court is conscious of the Supreme Court’s
admonition in Jackson that federal courts not become arbiters of all disciplinary decisions
rendered by a school system. And the court is also wary that permitting Title IX “peer-to-peer”
harassment claims to proceed against a school system in the absence of subsequent acts of
similar harassment (at least as to some of the Doe Sisters here) could, if not appropriately
cabined, unnecessarily subject schools to Title XI lawsuits.
Notwithstanding these concerns, the facts of this case, when viewed in the light most
favorable to the plaintiffs, reflect a remarkably slow and ineffectual response by SHS and the
RCBE to allegations of sexual harassment. The lack of response and attempt to deter future
incidents understandably could have shaken the Doe family’s faith in the RCBE to ensure the
Doe Sisters’ freedom from continuing harassment at SHS. At the same time, depending on the
evidence presented at trial, there is a legitimate prospect that the court might, upon motion, direct
a verdict for the RCBE on certain claims as to one or more plaintiffs. The court also expects
that, through motions in limine, some of the evidence that the plaintiffs seek to present at trial
will be limited. Subject to these caveats, the court will permit the claims to proceed to trial.
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CONCLUSION
The defendant’s Motion for Summary Judgment will be denied.
_____________________________
ALETA A. TRAUGER
United States District Judge

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