                                                                           FILED
                            NOT FOR PUBLICATION                             OCT 14 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT

MADISON POWER, a minor, by and                   No. 10-15149
through Kelly and Lisa Power, her parents
and guardians,                                   D.C. No. 2:07-cv-02584-JAT

              Plaintiff - Appellant,
                                                 MEMORANDUM *
  v.

GILBERT PUBLIC SCHOOLS, an
Arizona political entity; CANDICE
GONZALES, wife and in her individual
and official capacity as girls basketball
coach of Mesquite High School; JOSH
GONZALES, husband; BRADLEY K.
BARRETT, husband and Dr. in his official
and individual capacity as superintendent
of Gilbert Public Schools; BRADLEY K.
BARRETT, Mrs., wife; DAVID
ALLISON, husband, in his official and
individual capacity as assistant
superintendent of Gilbert Public Schools;
DAVID ALLISON, Mrs., wife; DOMINIC
MARCHIANDO, husband and in his
official and individual capacity as
principal of Mesquite High School;
DOMINIC MARCHIANDO, Mrs., wife,

              Defendants - Appellees.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                    Appeal from the United States District Court
                             for the District of Arizona
                    James A. Teilborg, District Judge, Presiding

                       Argued and Submitted April 14, 2011
                            San Francisco, California

Before: THOMAS and RAWLINSON, Circuit Judges, and CARNEY, District
Judge.**

      Plaintiff-Appellant Madison Power appeals the district court’s order granting

summary judgment in favor of Defendants-Appellees Gilbert Unified School

District (“Gilbert Public Schools”), Dr. Bradley Barrett, the superintendent of

Gilbert Public Schools, Dr. David Allison, the assistant superintendent, and Ms.

Candice Gonzales (collectively “Appellees”), in Power’s action for sex

discrimination. Power alleges that while she was a member of the Mesquite High

School varsity girls’ basketball team, her assistant coach and Gonzales’ husband,

Mr. Josh Gonzales, made inappropriate sexual remarks to her and several other

girls. Power alleges that after she reported Mr. Gonzales’ remarks to the Mesquite

High School administration and the Gilbert Public Schools administration, Ms.

Gonzales, Mr. Gonzales’ wife and the head coach of the varsity basketball team,

retaliated against her and that the other members of the varsity basketball team


       **
             The Honorable Cormac J. Carney, United States District Judge for the
Central District of California, sitting by designation.

                                          2
harassed her. Power brought claims of intentional sex discrimination against

Gilbert Public Schools pursuant to Title IX of the Educational Amendments of

1972, 20 U.S.C. § 1681(a) (2006), and against the individual defendants pursuant

to 42 U.S.C. § 1983. We review the district court’s grant of summary judgment de

novo, Ramirez v. City of Buena Park, 560 F.3d 1012, 1019 (9th Cir. 2009), and we

may affirm the district court’s grant of summary judgment on any ground

supported by the record, Cmty. Bank of Ariz. v. G.V.M. Trust, 366 F.3d 982, 984

(9th Cir. 2004). We affirm.

      The district court properly granted summary judgment in favor of Gilbert

Public Schools on Power’s Title IX claim for sex discrimination because Power did

not raise a genuine issue of material fact regarding whether Gilbert Public Schools

responded to her complaints about Ms. Gonzales’ conduct or her peers’ harassment

with deliberate indifference. See Davis Next Friend LaShonda D. v. Monroe Cnty.

Bd. of Educ., 526 U.S. 629, 633 (1999) (student-on-student sexual harassment);

Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290–91 (1998) (teacher-on-

student sexual harassment). In order to show that Gilbert Public Schools

responded to Power’s complaints with deliberate indifference, Power must show

that the response was “clearly unreasonable in light of the known circumstances.”

Davis, 526 U.S. at 648. Power did not present any such evidence. In fact, the


                                         3
record shows that Gilbert Public Schools officials timely and thoroughly

investigated and responded to each of Power’s complaints about Ms. Gonzales and

several members of the varsity girls’ basketball team.

       Summary judgment on Power’s § 1983 claim based on the Equal Protection

Clause was also warranted. Although retaliating against a person for reporting

sexual harassment is arguably a violation of the Equal Protection Clause, see

Alaska v. EEOC, 564 F.3d 1062, 1069 (9th Cir. 2009) (en banc), Power did not

present any evidence to raise a genuine issue of material fact regarding whether

Ms. Gonzales, Dr. Barrett, and Dr. Allison retaliated or otherwise intentionally

discriminated against her. Power only presented evidence that Ms. Gonzales made

a few snide remarks to her or about her; she presented no evidence that Ms.

Gonzales took any adverse action against her or treated her any differently than

any other member of the varsity basketball team. See Hardage v. CBS

Broadcasting, Inc., 427 F.3d 1177, 1189 (9th Cir. 2005) (explaining that snide

remarks and thinly veiled threats do not amount to an adverse action for purposes

of a Title VII retaliation claim). Power also did not present sufficient evidence to

create a triable issue regarding whether Ms. Gonzales encouraged or directed the

members of the varsity basketball team to harass her, or that Dr. Barrett or Dr.

Allison retaliated or otherwise intentionally discriminated against her on the basis


                                          4
of sex. See Jackson v. City of Bremerton, 268 F.3d 646, 653 (9th Cir. 2001)

(holding that for a supervisor to be liable in his individual capacity under § 1983

the plaintiff must show that he “was personally involved in the constitutional

deprivation or a sufficient causal connection exists between the supervisor’s

unlawful conduct and the constitutional violation”); T.E. v. Grindle, 599 F.3d 583,

588 (7th Cir. 2010) (concluding that where underlying constitutional violation

requires showing of intentional discrimination, plaintiffs must also show that

supervisor possessed the requisite discriminatory intent) (citing Ashcroft v. Iqbal,

129 S.Ct. 1937, 1948–49 (2009).

      Finally, the district court properly granted summary judgment in favor of Dr.

Barrett, Dr. Allison, and Ms. Gonzales on Power’s § 1983 claim based on the First

Amendment because Power waived her First Amendment claim by failing to raise

it in opposition to the Appellees’ motion for summary judgment. Jenkins v. Cnty.

of Riverside, 398 F.3d 1093, 1095 n.4 (9th Cir. 2005).

      AFFIRMED.




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