                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 16a0568n.06

                                      Case No. 15-1891

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                                                                  FILED
                                                                             Oct 13, 2016
PAMELA CAMPBELL, Individually and as              )
                                                                        DEBORAH S. HUNT, Clerk
next friend of JANE DOE, a minor                  )
                                                  )
       Plaintiff-Appellant,                       )      ON APPEAL FROM THE UNITED
                                                  )      STATES DISTRICT COURT FOR
v.                                                )      THE EASTERN DISTRICT OF
                                                  )      MICHIGAN
DUNDEE COMMUNITY SCHOOLS; WEST                    )
EDUCATIONAL LEASING; FREDERICK                    )
AARON CARNER; BRUCE NELSON                        )
                                                  )
       Defendants-Appellees.

____________________________________/


Before: MERRITT, ROGERS, and KETHLEDGE, Circuit Judges.

       MERRITT, Circuit Judge. This case on appeal is brought by plaintiff-appellant Pamela

Campbell, the mother of a middle school student who was the victim of repeated sexual abuse by

Richard Alan Neff, her school basketball coach. The student, “Jane Doe,” became involved in a

relationship with Neff beginning in the summer of 2009 and ending on April 23, 2010, when a

school janitor discovered Doe and Neff engaging in a sex act. The plaintiff filed suit, raising

claims against Dundee Community Schools, West Educational Leasing, Inc. (d/b/a “Professional

Contract Management, Inc.” or “PCMI”), Athletic Director Fredrick Aaron Carner, and

Superintendent Bruce Nelson under Title IX, 42 U.S.C. § 1983, and Michigan state law. The
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Campbell v. Dundee Cmty Schools

United States District Court for the Eastern District of Michigan granted the defendants’ motions

for summary judgment on the Title IX, 42 U.S.C. § 1983, and various state law claims. The rest

of the plaintiff’s state law claims were dismissed without prejudice. On appeal, the plaintiff

argues that the district court erred in dismissing the Title IX and 42 U.S.C. § 1983 claims.1

         The district court correctly dismissed the claims. No reasonable jury could return a

verdict for the plaintiff on either. We AFFIRM the district court’s grants of summary judgment

to the defendants.

                            I. Factual Background and Procedural Posture

         Jane Doe attended Dundee Middle School as a seventh and eighth grade student during

the 2008-09 and 2009-10 school years. Doe was a member of the girls’ basketball team during

both years. From 2001 to 2010, the girls’ team was coached by Richard Neff, who by 2010 was

47 years old. Doe’s father, Chris Campbell, was an assistant coach during the two years that Doe

was on the team. He was in a position to observe the behavior between his daughter and Neff,

but did not report or suspect an improper relationship.

         At the beginning of Doe’s seventh grade season in January 2009, Neff began texting Doe

and other girls on the team. Initially, Neff’s texts to Doe reflected a typical “student/coach

relationship.” But by the summer of 2009, Neff’s texts to Doe became “excessive” and involved

topics unrelated to basketball or school. Neff began calling Doe regularly, and at the end of

June, Neff secretly kissed Doe on the cheek while he visited Doe’s home to watch a hockey

game with Doe’s father.



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

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       Neff secretly began a sexual relationship with Doe during the fall of 2009. Neff would

covertly visit Doe’s family’s property around 6:30 a.m., and Doe would sneak out of the house to

visit Neff in his car. During these encounters, Neff would hug, touch, and kiss Doe. Neff’s texts

and phone calls to Doe also became sexual in nature.

       West Educational Leasing, Inc., doing business as Professional Contract Management,

Inc. (“PCMI”), took over employment responsibilities for the Dundee School District Athletic

Department in 2010.      As part of the arrangement West Educational Leasing did criminal

background checks on Neff and other Dundee employees, but did not conduct interviews. There

was no indication of prior criminal activity from Neff’s background check. School District

Superintendent Bruce Nelson certified that there was no documentation of unprofessional

conduct in Neff’s personnel file at that time.

       Neff and Doe’s sexual relationship continued during the eighth grade basketball season,

and from January to April 2010 Neff and Doe had sexual contact “[a]t least 15 times.” Neff had

sexual contact with Doe in a school equipment room before practices and home games and, on at

least one occasion, surreptitiously in the back of the team bus returning from a game. Neff

instructed Doe to keep their relationship secret, and Doe testified that she did not disclose the

relationship to anyone. There is no witness testimony suggesting anyone knew of the sexual

relationship while it was ongoing.

       During Doe’s eighth grade season, Aaron Carner, the school district’s athletic director,

received complaints from parents that Neff was sitting in the back of the bus when the team

traveled and was calling and texting students on the team. A teammate’s parent, Jessica Burd,

complained about Neff and Doe’s relationship in late February 2010 to the school’s vice

principal, along with Neff and Carner. Burd complained that Doe was “in love” with Neff, that


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Neff favored Doe during practice, that Doe’s infatuation was causing friction among team

members, and that school administrators should “put a stop to” the problem. But Burd never saw

Doe’s “crush” reciprocated by Neff. Indeed, Burd’s concern was that Doe’s behavior was “odd”

and negatively affecting the “team dynamic,” and that Neff “was not doing enough to stop it.”

Burd expressed shock to learn of the sexual relationship after Neff was caught.

       Carner discussed the parent complaints with Neff, and instructed him to stop texting

players and to no longer sit with players in the back of the bus. According to Carner, the

parents’ complaints did not lead him to believe Neff was acting inappropriately, and the central

purpose of his discussion with Neff was to “protect [Neff] at the time” and to respect “normal

protocol.”

       On April 23, 2010, school janitor Robert Kominek observed Neff and Doe engaging in

sexual contact in a janitor’s closet after school hours. Kominek promptly reported the incident to

Athletic Director Carner, who in turn called District Superintendent Nelson. Acting on Nelson’s

instructions, Carner called both the police and Child Protective Services. Neff was arrested,

prosecuted, and convicted of two counts of first-degree criminal sexual conduct, one count of

second-degree criminal sexual conduct, and one count of soliciting a child for immoral purposes.

He is currently incarcerated.

       Pamela Campbell, Jane Doe’s mother, filed suit against Neff, Carner, Nelson, Dundee

Community Schools, and West Educational Leasing, asserting Title IX, 42 U.S.C. § 1983, and

Michigan state law claims. The district court granted the defendants’ motion for summary

judgment with respect to Title IX, § 1983, and various state law claims. The district court denied

the defendants’ motions for summary judgment on plaintiff’s state law claims for (1) violation of

the Elliott-Larson Civil Rights Act, M.C.L. § 37.402(a), against Dundee Community Schools,


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Nelson, and Carner; and (2) vicarious liability for Dundee Community Schools for Neff’s

negligent infliction of emotional distress. However, because the district court had granted

dismissals for all the federal law claims, it dismissed the remaining state claims without

prejudice for lack of jurisdiction. Plaintiff now appeals to this Court seeking reversal of the

district court’s grant of summary judgment on her Title IX and 42 U.S.C. § 1983 claims.

       We review de novo a district court’s grant of summary judgment. Equal Employment

Opportunity Commission v. University of Detroit, 904 F.2d 331, 334 (6th Cir. 1990). Summary

judgment is proper only if “the pleadings, depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any, show that there is no genuine issue of material fact

and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). In

reviewing a summary judgment motion, we view all facts and draw all reasonable inferences in

the light most favorable to the nonmoving party. Scott v. Harris, 550 U.S. 372, 378 (2007).

                                       II. Title IX Claim

       The plaintiff Campbell appeals the dismissals of the Title IX actions against Nelson,

Carner, West Educational Leasing, and Dundee Community Schools. “No person in the United

States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or

be subjected to discrimination under any education program or activity receiving Federal

financial assistance.” 20 U.S.C. § 1681(a). Title IX actions for monetary damages are available

to students subjected to sexual harassment or abuse by a teacher. See Williams ex rel. Hart v.

Paint Valley Local Sch. Dist., 400 F.3d 360, 367 (6th Cir. 2005).

       Only recipients of federal funds may be liable under Title IX. Soper v. Hoben, 195 F.3d

845, 854 (6th Cir. 1999) (explaining that the government’s enforcement power may only be

exercised against the funding recipient itself, and damages liability under Title IX has not


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extended damages liability to parties outside the scope of this power). Title IX does not permit

individual liability against school officials for sexual harassment as only recipients of federal

funds can be held liable under Title IX. See id. Accordingly, Nelson and Carner cannot be held

individually liable, and the actions against them were properly dismissed.

       Similarly, Title IX does not extend liability to West Educational Leasing since it did not

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

assistance.” National Collegiate Athletic Ass’n v. Smith, 525 U.S. 459, 468 (1999). A fund

recipient’s damages liability for sexual harassment under Title IX is limited to circumstances

where the recipient has substantial control over both the harasser and the context in which the

known harassment occurs. Davis v. Monroe Cty Bd. of Educ., 526 U.S. 629, 645 (1999). West

Educational Leasing had neither. The Title IX action against West Education Leasing, Inc. was

therefore correctly dismissed.

       Dundee Community Schools does not contest that it is a recipient of federal funds for

purposes of Title IX, nor does it contest that its employee sexually abused Doe. A school

district’s liability under Title IX for sexual harassment of a student requires a plaintiff to show

“an official of the school district who at a minimum has authority to institute corrective measures

on the district’s behalf has actual notice of, and is deliberately indifferent to, the teacher’s

misconduct.” Gebser v. Lago Vista Independent School Dist., 524 U.S. 274, 277 (1998). While

Superintendent Nelson and Athletic Director Carner are school officials who have the authority

to institute corrective measures against sexual harassment, the plaintiff did not provide sufficient

evidence that either had actual notice or showed deliberate indifference.

       The plaintiff argues that actual notice of a substantial risk of sexual harassment or abuse

was provided to school officials in a number of ways. These indications include: Neff’s habit of


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sitting in the back of the bus with the girls on the team; Neff texting and calling the girls on their

cell phones; Jane Doe’s “crush” on Neff; and the school custodian having a “weird feeling”

about Neff and Doe’s relationship, which the custodian did not report until after the relationship

was discovered.     Director Carner spoke to Neff about the behavior after receiving parent

complaints, but neither the complaints nor Carner’s talk with Neff show any indication that there

was a risk of a sexual relationship between Neff and Doe. The complaints were related to

preserving the “team dynamic” by not showing favoritism. Under the actual notice standard, the

plaintiff must be able to show that the authority figures were on notice of a substantial risk of the

actual type of harassment that occurred. See Davis, 526 U.S. at 654. “Communications at odd

hours, inappropriate counseling, unchaperoned off-campus activities, and inappropriate

interactions with team members” do not provide notice that sexual harassment is occurring.

Henderson v. Walled Lake Consol. Schools, 469 F.3d 479, 490 (6th Cir. 2006). Doe and Neff

intended to keep the relationship secret, and did so successfully until they were caught. Even

Doe’s father, who was also coaching the team, was fooled. This fact gives rise to the inference

that the other observers with more distant relationships to Doe were not at fault when they did

not take action to remedy or report the unknown sexual activity. The custodian’s later reporting

that he had a completely internal and undiscussed “weird feeling” is not a basis for liability.

         Nor was Dundee Community Schools deliberately indifferent to sexual harassment or

abuse. “A [federal assistance] recipient is liable for damages only where the recipient itself

intentionally acted in clear violation of Title IX by remaining deliberately indifferent to known

acts of harassment.” Vance v. Spencer Cty. Public School Dist., 231 F.3d 253, 260 (6th Cir.

2000).    “The deliberate indifference must, at a minimum, ‘cause [students] to undergo’

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


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there was no notice to school officials of a risk of sexual harassment occurring, then there was no

deliberate indifference toward the risk.

       The plaintiff contends that Director Carner’s testimony showed his indifference when he

advised Neff to stop sitting in the back of the bus. Carner stated that, “the conversation was to

protect [Neff] at the time. It wasn’t a red flag for me as far as, you know, is he doing anything

inappropriate or not” and “I felt like [Neff was] putting himself in a situation that was not good

for him as far as sitting in the back of the bus [in] the dark with kids, more importantly, girls.”

While the plaintiff claims that these statements prove that Carner was aware of and covering up

Neff’s behavior, the statements show just the opposite. Carner’s concern was that Neff should

follow protocol, not that there was a substantial risk that Neff was engaged in a sexual

relationship with Doe. There is no evidence that any school official, or even any other person,

was aware of the risk. Accordingly Dundee Community Schools did not intentionally disregard

such a risk. The grant of summary judgment for Dundee Community Schools was proper.

                                           III. § 1983 Claim

       The plaintiff Campbell also appeals the grants of summary judgment for Superintendent

Nelson and Athletic Director Carner, as well as Dundee Community Schools, for her claims

based on §1983. In order to hold Dundee Community Schools liable under § 1983, the plaintiff

must overcome the requirements of Monell v. Department of Social Services, 436 U.S. 658

(1978). Under Monell the plaintiff may not base her claim on a theory of respondeat superior,

but must show that the schools’ officials were acting according to a “policy” or “custom” within

the system that leads to or results in the deprivation of a constitutionally protected right of bodily

integrity, specifically the right not to be sexually molested by her coach. Id. at 694. The plaintiff

does not seem to assert that the sexual abuse resulted from an officially enacted policy or a


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custom that is “so permanent and well settled as to constitute a custom or a usage with the force

of law.” Id. at 691. A lack of knowledge of the sexual misconduct that was successfully

concealed for almost a year is not a “custom” of Dundee Community Schools.

       As to Nelson and Carner, the plaintiff must show that the officials’ conduct violated a

constitutional right and that the right is “clearly established.” Saucier v. Katz, 533 U.S. 194,

201-02 (2001). The burden is on the plaintiff to show that the officials are not entitled to

qualified immunity. Binay v. Bettendorf, 601 F.3d 640, 647 (6th Cir. 2010). The plaintiff must

show that the supervisory officials “at least implicitly authorized, approved or knowingly

acquiesced in the unconstitutional conduct of the offending subordinate.” Bellamy v. Bradley,

729 F.2d 416, 421 (6th Cir. 1984). In this case the individual defendants had no reason to

believe that Doe was being sexually assaulted or molested by Neff because she and Neff

successfully hid their relationship. Apparently not even Doe’s own father, who also coached the

basketball team, had any suspicion that the relationship was occurring. Moreover, the mother,

plaintiff Campbell, apparently had no suspicion either, even though Neff was a friend and visitor

to the Campbell home and the daughter sometimes sneaked out of the house to meet Neff. There

are no facts of the slightest kind indicating guilty knowledge, negligence, or deliberate

indifference on the part of the school supervisory officials.

       Accordingly, the judgment of the district court is AFFIRMED.




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