                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-23-2002

Warren v. Reading Sch Dist
Precedential or Non-Precedential:

Docket 0-1148




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Filed January 23, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-1148

ROBERT WARREN, A MINOR, BY AND THROUGH LORI
A. GOOD, HIS PARENT AND NATURAL GUARDIAN

v.

READING SCHOOL DISTRICT; GERALDINA SEPULVEDA,
IN HER INDIVIDUAL AND OFFICIAL CAPACITY AS
PRINCIPAL OF THE 10TH AND GREEN ELEMENTARY
SCHOOL; JAMES A. GOODHART, IN HIS INDIVIDUAL
AND OFFICIAL CAPACITY AS SUPERINTENDENT OF THE
READING SCHOOL DISTRICT

       Reading School District,
          Appellant

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
Civil Action No. 97-cv-4064
District Judge: Hon. J. Curtis Joyner

Argued: December 4, 2000

Before: McKEE, ROSENN and CUDAHY,*
Circuit Judges

(Opinion Filed: January 23, 2002)



_________________________________________________________________
* The Honorable Richard D. Cudahy, Senior Judge for the United States
Court of Appeals for the Seventh Circuit sitting by designation.
       DAVID R. DAUTRICH, ESQ. (Argued)
       526 Court Street
       Reading, PA 19601

       Attorney for Appellee

       FREDERICK B. BUCK, III, ESQ.
        (Argued)
       Rawle & Henderson
       1339 Chestnut Street
       16th Floor
       Philadelphia, PA 19107

       Attorney for Appellant

OPINION OF THE COURT

McKEE, Circuit Judge.

Lori Good brought this action on behalf of her minor son,
Robert Warren, seeking damages under Title IX for sexual
abuse he received at the hands of his fourth grade teacher
in a school that was part of the defendant school district.
Plaintiff also contends that the school's principal was
individually liable for damages under 42 U.S.C.S 1983. The
jury returned a verdict against the school district under
Title IX, but found the principal was not liable under
S 1983. The district court refused to grant a renewed
defense motion for judgment as a matter of law or grant a
new trial, and awarded plaintiff attorney's fees. This appeal
followed. For the reasons set forth below, we will reverse
and remand for a new trial on plaintiff 's Title IX claim.

I. FACTUAL BACKGROUND

In April 1995, Robert Warren transferred into the
Reading School District's Tenth and Green Elementary
School where he was assigned to Harold Brown's fourth
grade class. At some point after Robert's transfer, Robert
remained after school at Brown's request. While Robert
remained in the classroom, Brown locked the classroom
door, and asked Robert to play a "game" that Brown called
"shoulders." This consisted of Robert squatting with his

                                2
head between Brown's legs and placing his shoulders under
Brown's thighs. Robert would then lift Brown's upper body
from this squatting position as Brown leaned forward. As
Robert lifted, Brown's genitals touched the back of Robert's
head and neck. Brown challenged Robert to squat and lift
as many times as he could and Brown "rewarded" Robert
with candy or money when the "game" was over. Brown
apparently repeated this routine two or three times per
week during the school year. On at least one occasion
during the following summer, Brown also drove by Robert's
house in order to pick Robert up and take him to a"secret
spot" near the woods where they again played"shoulders."

In early November 1995, Lori Good discovered her son's
journal and read an entry in which Robert described
playing "shoulders" with Brown at a secret spot. Good
immediately became concerned and spoke to Robert about
the entry. After that discussion, Good reported Brown's
conduct to the Berks County Children and Youth Services.
That agency reported Brown's suspected abuse to the
school district, and Brown was suspended, and ultimately
resigned his position.1

A short time later, Good initiated a civil rights action
under 42 U.S.C. S 1983 seeking damages from the Reading
School District, Dr. Sepulveda, the principal of Tenth and
Green Street School; and Dr. James A. Goodhart, the
former superintendent of the Reading School District. The
suit included a state law claim against Sepulveda and
Goodhart under 42 Pa. C.S.A. S 8550. Good subsequently
amended the complaint to add a private cause of action for
damages against the school district under the Education
Amendments of 1972, 20 U.S.C. S 1681 et. seq. (Title IX).

The district court granted summary judgment in favor of
the defendants and against Robert on all claims except the
Title IX claim against the school district and theS 1983
claim against Sepulveda. Those claims proceeded to trial.
_________________________________________________________________

1. The briefs of the parties confirm that Brown surrendered to authorities
and was thereafter arrested on three criminal complaints detailing sexual
abuse of several male students. He was thereafter prosecuted in the
Court of Common Pleas of Berks County. Commonwealth of Pennsylvania
v. Harold Brown, Criminal Nos. 1677/96, 973/96, 2107/96.

                               3
Carlos Mercado testified at trial for the plaintiff.
Mercado's son had been a student at Tenth and Green
Elementary School in the early 1990s. Mercado testified
that he went to that school sometime in 1992 or 1993 and
spoke with Sepulveda regarding his concerns about Brown
engaging in inappropriate activity with his son. The
following exchange occurred during Mercado's testimony:

        Q: And what did you say to the principal that day,
        Mr. Mercado?

        A: I told her that I wanted to talk to her about Mr.
        Brown taking my kid to his house, that there's no
        reason for him to take him to his house and give him
        money to lift him up and down. She told me that she
        was too busy to listen to me at that time. She told me
        to talk to Mr. Vecchio [the guidance counselor].

* * *

        Q: Did you talk to Mr. Vecchio?

        A: Yes. . . . I told him -- she told me to go to him, so
        I went to him. He said what was the problem. I told
        him that I wanted to talk to him about Mr. Brown
        taking my kid to his house and lifting him up and
        down and giving him money. There was no reason for
        that.

        Q: Mrs. Sepulveda, did she stay at the office?

        A: No, she walked out.

Appendix at 129-30.

Mercado testified that Vecchio said he was going to talk
to Brown and "get back to me," but Mercado never heard
anything further from Vecchio, Sepulveda, or anyone else at
the school. According to Mercado, Sepulveda appeared to
be in a hurry, and upset about something when he tried to
speak to her. He testified: "I couldn't describe it to the lady
because she was too much in a hurry. She was going out."
Id. at 139-40. Vecchio and Sepulveda also testified, but
they both denied having any such conversation with
Mercado.

Plaintiff also introduced the testimony of Dr. Susan
Kraus, an expert in psychology and sexual abuse of

                                 4
children. She testified that the "shoulders" game that
Robert described was actually a masturbatory exercise
engaged in for sexual gratification. According to her
testimony, "games" such as this are nothing more than
sexual activity. They did not constitute anything that could
be regarded as "horseplay."

Dr. Chester Kent also testified for plaintiff over the
defendants' objection. Kent was an expert in the field of
school policy, procedure and administration, with a
subspecialty in cases involving molestation or abuse of
children. He opined that the Dr. Sepulveda's internal
policies for student safety were highly deficient and not
conducive to protecting the health, safety, or welfare of the
students at the school. App. 231, 239, 243, 250-1. He also
surmised that, given the number of children that had been
victimized by Brown, the level of activity in Brown's
classroom should have aroused suspicion. He added that
Sepulveda was complacent and her approach to protecting
the welfare of the children at her school conveyed that
complacency to the teachers she was responsible for
supervising. According to him, those teachers "were
certainly incapable of recognizing the signs that they
should have recognized when something was not right
regarding molestation of students." App. 250-1. Kent
concluded that Sepulveda's attitude evidenced deliberate
indifference as exemplified by her response to the Mercado
complaint. Id. He testified:

       throughout [Sepulveda's] tenure, beginning with the
       Mercado incident, she basically conducted no
       investigations of any type to determine if there was a
       legitimate complaint involved. This becomes very, very
       important because one could always say, I've turned it
       over to the police or I turned it over to Children and
       Youth Services. but the police standard is much
       higher. . . . School Districts are required to conduct an
       investigation to determine whether or not a person is
       fit to be a teacher. None of that has ever gone on under
       her leadership in the building

App. 251-2. Later in his testimony, Dr. Kent told the jury
that Dr. Sepulveda's attitude "really served to create a
hostile environment in the building where young boys. . .

                               5
became prey of a teacher who was bent on molesting them
and this was happening right under the nose of the
principal." App. 257.

Plaintiff also introduced two "supervisory conference"
memoranda over defense objection. The first memorandum,
dated 1969, was a two-page evaluation of Brown that had
been prepared years before he came to Robert's school. The
memorandum summarized the conference Brown
apparently had with a supervisor back in 1969. It stated in
part: "[w]e also discussed his preparation for graduate
school-- children in his class-- and his involvement with
children after school hours." Warren v. Reading School
Dist., 82 F. Supp. 2d 395, 398 (E.D. Pa. 2000). The
memorandum was in Brown's personnel file in the School
District Administration Building, but there was no evidence
that Sepulveda, or anyone else at Robert's school ever saw
it or knew it existed.

The second memorandum was a supervisory conference
memorandum that Sepulveda prepared in 1995. It stated in
part: "it has been brought to my attention that the games
you play with the students in the classroom involve
physical contact. For the best interest of all concerned, this
situation must `stop'." Id. Sepulveda explained that this
second memorandum referred to a parent's complaint that
inappropriate "horseplay" was occurring in Brown's
classroom during recess and not inappropriate sexual or
physical contact.

At the close of plaintiff 's case, the school district moved
for judgment as a matter of law under Fed. R. Civ. P. 50.
The school district argued that plaintiff had not introduced
sufficient evidence to allow a reasonable jury to conclude
that an official of the Reading School District had actual
knowledge of, and was deliberately indifferent to, Brown's
conduct as was required under the standard recently
articulated in Gebser v. Lago Vista Independent School
District, 524 U.S. 274 (1998). Sepulveda also moved for
judgment as a matter of law arguing that the evidence was
insufficient to impose S 1983 liability on her under
Stoneking v. Bradford Area School District, 882 F.2d 720 (3d
Cir. 1989). The court denied both motions, and the jury
returned a verdict against the school district under Title IX

                               6
in the amount of $400,000. The jury's interrogatories
established that the jury found that a school district official
with authority to institute corrective measures had actual
notice of Brown's conduct and acted with deliberate
indifference. However, the jury also found for principal
Sepulveda and concluded that she was not individually
liable under S 1983.

The school district filed timely motions for judgment as a
matter or law, or in the alternative, for a new trial, under
Fed. R. Civ. P. 50(b) and 59. The district court denied both
motions, entered judgment against the school district, and
awarded plaintiff $104,000 in attorney's fees under 42
U.S.C. S 1988. This appeal followed.

The school district raises several claims of error.
However, we will limit our discussion to the district's claim
that the court erred in not instructing the jury that Vecchio
could not be considered "an appropriate person" under Title
IX. Inasmuch as we conclude that the school district is
entitled to a new trial on that basis, the remaining claims
of error are moot.2

II. JURISDICTION AND STANDARD OF REVIEW

The district court had subject matter jurisdiction over
plaintiff 's federal claims pursuant to 28 U.S.C.S 1331. We
have jurisdiction under 28 U.S.C. S 1291. Our review of the
district court's denial of the Rule 50(b) motion is plenary.
_________________________________________________________________

2. We do, however, note our concern with admitting the 1969 conference
memorandum as this may become an issue at any subsequent retrial.
The district court concluded that the memorandum"was not unfairly
prejudicial," and allowed it into evidence. Warren 82 F. Supp. 2d at 401.
We do not disagree with the court's assessment of the note's minimal
potential for prejudice. However, its contents are so nebulous that only
the rankest kind of speculation can connect it to anything relevant to
Title IX. See P.H. v. School District of Kansas City, 265 F.3d 653, 660
(8th Cir. 2001) (an "isolated complaint that was nearly 20 years old at
the time of [the] abusive conduct . . ." was not "itself a sufficient
basis
on which to infer that the [defendant school district] had notice of the
improper sexual contact . . ."). Furthermore, the memorandum is
unsigned, the author uncertain, and the record is silent as to who
attended the conference from which it allegedly emanated.

                               7
Accordingly, we will reverse "only if, viewing the evidence in
the light most favorable to the nonmovant and giving it the
advantage of every fair and reasonable inference, there is
insufficient evidence from which a jury reasonably could
find liability." Fultz v. Dunn, 165 F.3d 215, 218 (3d Cir.
1998). We review the district court's order denying a new
trial for abuse of discretion, unless the court's decision is
based upon the application of a legal precept. If that is the
case, our review is plenary. Pryer v. C.O. 3 Slavic, 251 F.3d
448, 453 (3d Cir. 2001).

III. DISCUSSION

A. LIABILITY UNDER TITLE IX, 20 U.S.C. S 1681 et
seq.

Title IX of the Education Amendments of 1972 provides
in pertinent part:

       No person . . . 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. S 1681(a). Although Congress only provided for
administrative enforcement of Title IX's prohibition against
discrimination, the Supreme Court held in Cannon v.
University of Chicago, 441 U.S. 677 (1979), that Title IX is
also enforceable through an implied private right of action.
Thereafter, in Franklin v. Gwinnett County Public Schools,
503 U.S. 60 (1992), the Court held that monetary damages
can be recovered in a private action under Title IX.
However, the Court did not define the parameters of that
liability until it decided Gebser, supra.

Gebser concerned an implied private cause of action for
damages resulting from sexual harassment of a student by
a teacher. Waldrop, who was the teacher, began making
"sexually suggestive comments to students," and eventually
initiated sexual contact with the minor plaintiff while
visiting her home "ostensibly to give her a book" while her
parents were away. Id. at 277-8. Waldrop's advances

                               8
escalated to a sexual relationship which he maintained with
the plaintiff student who was assigned to his classroom.

Gebser never reported Waldrop's conduct. Parents of two
other students did complain to the high school principal.
However, those parents only knew of Waldrop's improper
class room comments, and that was the substance of their
complaints to the school principal. The principal responded
by arranging a meeting between himself, the parents who
had complained, and Waldrop. During that meeting,
Waldrop stated that he did not believe any of his remarks
were offensive, but he nevertheless apologized for them. The
principal responded by cautioning Waldrop about his class
comments, and later informing the school's guidance
counselor about the meeting. However, the principal did not
inform the district superintendent (who was also the
district's Title IX coordinator) about the meeting.

Waldrop's relationship with Gebser was discovered a
couple of months later when police encountered them
having sexual intercourse. They arrested Waldrop, and the
school district immediately terminated him. Thereafter,
Gebser's parents brought an action against the school
district that included a claim under Title IX, and 42 U.S.C.
S 1983. The district court rejected the Title IX claim
because it concluded that Title IX did not support liability
in the absence of a policy, custom or a course of conduct
that amounted to a custom or policy allowing
discrimination or harassment. The court reasoned that
plaintiff had to show actual knowledge of discrimination,
and a failure to respond in good faith to establish such a
policy. 524 U.S. at 279. Inasmuch as the evidence
established that the school district only knew of parents'
complaints about Waldrop's improper comments, the court
held that the evidence was not sufficient to establish actual
or constructive knowledge of a sexual relationship with
Gebser. Accordingly, the court awarded judgment in favor
of the defendant school district on the Title IX claim, and
the Court of Appeals for the Fifth Circuit affirmed. Doe v.
Lago Vista Independent School Dist., 106 F.3d 1223 (1997).

On appeal, the Supreme Court was asked to decide
"when a school district may be held liable in damages in an
implied right of action under Title IX." 524 U.S. at 277. The

                               9
Court rejected employer liability based upon principles of
agency that apply in suits for sexual harassment under
Title VII. The Court reasoned that "it would frustrate the
purpose of Title IX to permit monetary damages for a
teacher's sexual harassment of a student based on
principles of respondent superior or constructive notice."
Gebser, 524 U.S. at 285, citing Franklin, 503 U.S. at 71.
Instead, the Court concluded that Title IX's "express
remedial scheme is predicated upon notice to an
appropriate person and an opportunity to rectify violation."
Gebser, 524 U.S. at 290 (internal quotation marks omitted).

The Court explained that liability in damages could not
attach under Title IX unless an "appropriate person" had
actual notice of the conduct that liability is premised upon,
and explained that:

       [a]n "appropriate person" under [Title IX] is, at a
       minimum, an official of the recipient entity with
       authority to take corrective action to end the
       discrimination. Consequently, in cases like this one
       that do not involve official policy of the recipient entity,
       we hold that a damages remedy will not lie under Title
       IX unless an official who at a minimum has authority
       to address the alleged discrimination and to institute
       corrective measures on the recipient's behalf has actual
       knowledge of discrimination in the recipient's programs
       and fails adequately to respond.

Gebser, 524 U.S. at 290.

Although the Court did not explicitly state whether a
school principal can be an "official" or "appropriate person"
under Title IX, we think it is obvious from the Court's
discussion that knowledge of a principal can be sufficient in
an appropriate case. The only official with information
about the teacher's misconduct in Gebser was the
principal. The Court examined his actual knowledge and
concluded that it was not sufficient for liability under Title
IX. Gebser, 524 U.S. at 291-92. The Court noted that

       [t]he only official alleged to have had   information about
       Waldrop's misconduct is the high school   principal.
       That information, however, consisted of   a complaint
       from parents of other students charging   only that

                               10
       Waldrop had made inappropriate comments during
       class, which was plainly insufficient to alert the
       principal to the possibility that Waldrop was involved
       in a sexual relationship with a student.

524 U.S. at 291. The Court's analysis suggested the
possibility that the principal could be "an appropriate
person" under Title IX if plaintiff could establish the
principal actually knew about the conduct and was
deliberately indifferent towards it.

The Court's analysis in Gebser rested upon the
supposition that a principal is usually high enough up the
bureaucratic ladder to justify basing Title IX liability on his
or her actual knowledge and deliberate indifference. If a
principal is not an "appropriate person" for purposes of
Title IX, a substantial portion of the Supreme Court's
analysis in Gebser was nothing more than a meaningless
discussion. See also Davis Monroe County Bd of Educ., 526
U.S. 629 (1999) (holding that principal's actual knowledge
and failure to respond would support liability under Title
IX); and Murrell v. School Dist. No. 1, Denver, Colo, 186 F.3d
1238, 1247 (10th Cir. 1999) ("We find little room to doubt
that the highest-ranking administrator [at the school]
exercised substantial control of Mr. Doe and the school
environment during school hours, and so her knowledge
may be charged to the School District.").

Moreover, the practical result of holding that a principal
is not an "appropriate person" would require a plaintiff to
prove that members of the school's governing body, perhaps
even a voting majority of those members, knew of the
improper conduct. That would undermine the private cause
of action under Title IX that the Court found in Cannon,
and eliminate the protection Congress intended for
students in schools receiving Title IX funds.

In concluding that the private cause of action under Title
IX was not identical to the cause of action under Title VII,
the Court in Gebser stressed the different purposes of those
two statutes. The explicit cause of action in Title VII is
intended to punish acts of discrimination, whereas the
cause of action in Title IX is intended as protection for the
student. See Gebser, 524 U.S. at 287 ("Title IX focuses

                               11
more on `protecting' individuals from discriminatory
practices carried out by recipients of federal funds."). The
Court was therefore concerned that an implied right of
private action not interfere with the opportunities for
voluntary compliance built into the statutory scheme of
Title IX, and administrative remedies that Congress
included in the statutory scheme. Holding a school district
responsible for actions of a principal fixes responsibility at
sufficiently high level to afford the recipient of Title IX funds
an opportunity to respond to claims of discrimination
before funds are jeopardized by a teacher's conduct. It also
affords an opportunity for voluntary compliance with the
contractual undertakings that are part of Title IX funding.
Gebser, 524 U.S. at 288. ("Presumably, a central purpose of
requiring notice of the violation `to the appropriate person'
and an opportunity for voluntary compliance before
administrative enforcement proceedings can commence is
to avoid diverting education funding from beneficial uses
where a recipient was unaware of discrimination in its
programs and is willing to institute corrective measures.").

The Supreme Court in Gebser recognized the practical
problems confronting plaintiffs attempting to establish a
valid claim under Title IX, as well as the increasing
difficulty of providing educational benefits in the face of
growing claims of sexual harassment. The Court noted:

       The number of reported cases involving sexual
       harassment of students in schools confirms that
       harassment unfortunately is an all too common aspect
       of the educational experience. No one questions that a
       student suffers extraordinary harm when subjected to
       sexual harassment and abuse by a teacher, and that
       the teacher's conduct is reprehensible and undermines
       the basic purposes of the educational system. The
       issue in this case, however, is whether the independent
       misconduct of a teacher is attributable to the school
       district that employs him under a specific federal
       statute designed primarily to prevent recipients of
       federal financial assistance from using the funds in a
       discriminatory manner. . . . [W]e will not hold a school
       district liable in damages under Title IX for a teacher's
       sexual harassment of a student absent actual notice
       and deliberate 293 indifference. . . .

                               12
524 U.S. at 292.

The school district argues that since Gebser did not
specifically "identify by job title those officials whose actual
knowledge of a teacher's misconduct may be imputed to the
school district," there remains an incomplete and vague
standard as to who may qualify as an "appropriate person,"
and the question remains subject to interpretation.
Appellants' Br. at 26. We disagree. For the reasons we have
just discussed, we think that a school principal who is
entrusted with the responsibility and authority normally
associated with that position will ordinarily be"an
appropriate person" under Title IX.3

Having reached that conclusion, however, we must still
determine if the evidence here was sufficient to allow a
reasonable jury to conclude that "an appropriate person"
had actual knowledge of Brown's abuse of Robert. If we
conclude that it was, we must then determine if the
evidence allowed the jury to conclude that the "appropriate
person" exhibited the deliberate indifference necessary to
liability under Title IX.

B. PLAINTIFF ESTABLISHED ACTUAL KNOWLEDGE
OF "AN APPROPRIATE PERSON."

Plaintiff attempted to prove that both Sepulveda and
Vecchio knew of Brown's conduct and the district court
accepted the argument that each was "an appropriate
person" under Title IX. On appeal, the school district
_________________________________________________________________

3. The court in Miller v. Kentosh 1998 WL 355520 (E.D. Pa.) referred to
the school principal as an appropriate supervisory official for the
purposes of Title IX liability. Moreover, in Massey v. Akron City Board of
Education, 82 F.Supp. 2d 735, 744 (N.D. Ohio 2000), the district court
found that the school principal, who was the supervisor of a teacher who
allegedly sexually harassed multiple students, was an official who had
the authority to institute corrective measures against the teacher.
Similarly, in Canty v. Old Rochester Regional School District, 66
F.Supp.2d 114 (D. Mass. 1999), summary judgment was dismissed in a
case where the building principal, deemed an appropriate person under
Gebser, failed to remedy the misconduct when he admittedly had
knowledge of it.

                               13
argues that neither is "an appropriate person," and plaintiff
persists in arguing that they both are.

The district court concluded that Sepulveda was"an
appropriate person" and that she transferred her authority
to Vecchio. The court also concluded that even if Vecchio
was not "an appropriate person," plaintiff is not entitled to
a new trial because the weight of the evidence established
liability based only upon Sepulveda's authority. Warren v.
Reading School Dist., 82 F. Supp. 2d 395, 401 (E.D. Pa.
2000). Although we agree that the evidence was sufficient
to allow a reasonable jury to conclude that Sepulveda was
"an appropriate person" under Title IX, we do not agree that
Vecchio was, or that Sepulveda somehow transferred her
authority to Vecchio.

Dr. Sepulveda testified that she had a doctorate degree in
education administration and supervision. App. 414. She
also testified that, as principal, she was in charge of every
aspect of the daily operations of the Tenth and Green
Elementary School, including supervision and discipline of
the teachers at the school. Id. at 414-17. She was
responsible for the health, safety, and welfare of the
students at her school. Id. She testified that she enacted,
oversaw, and administered numerous school programs
including the latch-key program, migrant program,
detention program, homework program, and dismissal
program. Id. She had also been responsible for planning
agendas for faculty-wide meetings during which she
instructed teachers on various district policies including
sexual harassment. Her duties included administrative
responsibility for educating teachers about sexual
harassment policies. Id. at 426-28, 442. Her responsibilities
for supervising teachers obviously included the kind of
reprimand contained in the supervisory conference note
mentioned above wherein she rebuked Harold Brown for his
activities with children. As noted above, that note stated in
part: "it has been brought to my attention that games that
you play with students in the classroom involve physical
contact. For the best interest of all concerned, this situation
must `stop.' " App. 249 (emphasis added).

Moreover, Dr. Kent's testimony stressed the importance
of the wording of that note. He believed it was very

                               14
uncommon for a principal to write such a pointed note and
place it in a personnel file. Kent opined that it meant that
Sepulveda was trying to "send a very strong message. They
did not want this behavior to continue." App. 250. The date
of this note, October 24, 1995, is after Brown's last contact
with Robert, and only 10 days before Brown was
suspended. Therefore, it did not conclusively establish
Sepulveda's knowledge of Brown's conduct. Moreover,
Sepulveda explained that the note was written in response
to parental complaints about "horseplay" in Brown's room
during recess, and not about the "shoulders" activity, or
anything like it. See Warren v. Reading School Dist., 82
F.Supp. 2d at 398. Assuming arguendo that the jury
accepted that explanation, the note is still highly probative
of Sepulveda's authority in the school.4 It certainly
corroborated the plaintiff 's contention that she was "an
appropriate person" with "authority to institute corrective
measures on the district's behalf." Gebser , 526 U.S. at 277.

The district court held that Sepulveda had supervisory
authority "to institute corrective measures on the district's
behalf," within the meaning of Gebser. 82 F. Supp. 2d at
400. Although Sepulveda, might not have authority to
terminate or even suspend a teacher under Pennsylvania
law, she acknowledges that she had authority to investigate
a teacher's misconduct. The authority to supervise a
teacher and to investigate a complaint of misconduct
implies the authority to initiate corrective measures such
as reporting her findings to her superior or to the
appropriate school board official at the very least. We
therefore agree with the district court that Dr. Sepulveda is
an official with authority to institute corrective measures on
the School District's behalf. Moreover, the October 24
memorandum is certainly consistent with the kind of
authority necessary to finding that she was "an appropriate
person" under Gebser.

We also agree that the evidence would support a finding
that Sepulveda knew of Brown's conduct and was
deliberately indifferent to it. Mercado's testimony alone
_________________________________________________________________

4. Although this assumption is contrary to our standard of review, it
illustrates the force of plaintiff 's evidence.

                               15
would support a jury finding that Sepulveda had been told
that a teacher in her elementary school was taking a
student to that teacher's home, and paying the student to
engage in physical activity consisting of "lifting up and
down." She responded by telling Mercado that she was "too
busy" to listen to this parent's complaint, or act upon it.
She referred Mercado to Vecchio, a guidance counselor. The
jury could find deliberate indifference from that testimony
alone, even absent Kent's expert assessment of it. 5

However, as noted above, plaintiff also argues that the
evidence would allow the jury to conclude that Vecchio was
"an appropriate person" as well. Vecchio testified that his
job involved dealing with children who have behavioral as
well as academic problems, and referrals to networks of
agencies that provide assistance to children and families.
App. 401. He also handled referrals for abuse, and
assumed the role of principal when Sepulveda was not in
the building. However, when Mercado visited Tenth and
Green Elementary School to complain about Brown's
conduct Sepulveda was present. Nothing suggests that
Vecchio was acting as principal then except for the
argument that arises from Sepulveda referring Mercado to
Vecchio because she was "too busy" to listen. That is not
sufficient on this record to visit liability upon the school
district. Although a principal can be "an appropriate
person," there is clearly insufficient evidence on this record
to allow a jury to conclude that Vecchio was cloaked with
sufficient authority to be a "responsible person" during any
time relevant here.

The case was submitted to the jury under a theory that
allowed it to find that either Sepulveda or Vecchio was "an
appropriate person." Moreover, during jury deliberations,
the jury asked whether the guidance counselor was"an
appropriate person." The court rejected the school district's
_________________________________________________________________

5. We realize that Mercado testified that Sepulveda was in a hurry and
appeared distracted when he spoke to her. However, that is not
inconsistent with deliberate indifference. Rather, testimony that a school
principal was too busy to respond to a parent's report that a teacher was
taking a student to that teacher's home and paying him for some kind
of physical activity involving "lifting up and down" could only have
confirmed Sepulveda's indifference.

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request that the jury be instructed that Vecchio was not
"an appropriate person" as a matter of law. Rather, the
court concluded that Vecchio's status under Gebser was a
fact question, and instructed the jury that it should make
its own determination based upon the evidence. App. 616-
618. The school district argues that was error that entitles
it to a new trial. We agree.

The court's response to the jury allowed the jury to
return a verdict for plaintiff based upon Vecchio's
knowledge and deliberate indifference rather than
Sepulveda's. However, the district court's own opinion
strongly suggests that the court did not believe that the
plaintiff 's Title IX claim could be based upon Vecchio's
knowledge and indifference. The court's entire discussion of
the jury's concern with Vecchio being "an appropriate
person" is as follows:

       Defendant next argues that the Court erred when it
       declined to instruct the jury that Mr. Vecchio, a
       guidance counselor, was not an "official" of the Reading
       School District within the meaning of Gebser, The
       Court does not agree with Defendant that it is clear
       that Mr. Vecchio was not an appropriate official under
       Gebser when the principal, Dr. Sepulveda, had
       transferred her authority to Mr. Vecchio. But more
       importantly, even if Mr. Vecchio were not an
       appropriate official under Gebser, for the reasons
       discussed in Section One (I) above the jury's verdict
       would not be "contrary to the great weight of the
       evidence," nor would the jury's verdict "produce a
       result inconsistent with substantial justice." Therefore,
       Defendant's request for a new trial on this basis is
       denied.

82 F. Supp. 2d at 401 (internal citations omitted). 6 The
court is careful to note that the school district could be
liable based upon Vecchio's knowledge "when the principal
. . . had transferred her authority to" him. Besides, such
_________________________________________________________________

6. Section one of the opinion, which the court refers to, is the portion
of
the court's analysis where the court convincingly discusses why
Sepulveda's authority would support the school district's liability under
Title IX.

                               17
authority could not have been transferred to Vecchio
without school district approval, and there is none here.
However, as we have already noted, this record does not
support a finding that such authority was transferred
(insofar as Title IX's "appropriate person" limitation is
concerned) at any time relevant to this complaint.
Sepulveda merely referred a complaint, she did not delegate
authority or responsibility. Accordingly, we conclude that
the district court erred in failing to instruct the jury that
Vecchio could not be "an appropriate person" on this
record.

Inasmuch as the jury's verdict slip does not allow us to
determine if the verdict was based upon Vecchio's actual
knowledge and deliberate indifference, or Sepulveda's
actual knowledge and deliberate indifference, we must
remand for a new trial on plaintiff 's Title IX claim as the
school district has requested in the alternative. 7

III. CONCLUSION

For the above reasons, we will affirm the district court's
denial of the defendants' motion for judgment as a matter
of law, but we will reverse the district court's denial of the
_________________________________________________________________

7. The school district argues that the jury's verdict for Sepulveda on the
S 1983 claim establishes that the jury found that Vecchio, and not
Sepulveda, was deliberately indifferent under Title IX. Appellant's Br. at
38. Accordingly, the school district argues it is entitled to judgment as
a matter of law on the Title IX claim. We do not think it appropriate to
grant judgment as a matter of law, however, because the evidence
supports a jury verdict on that claim if the verdict is based upon
Sepulveda's authority, knowledge, and deliberate indifference. The school
district requests a new trial on the Title IX claim in the alternative,
and
that relief is appropriate.

As noted above, plaintiff argues only that both Vecchio and Sepulveda
were "appropriate person[s]" for purposes of Title IX. He does not rely
upon a possibly inconsistent verdict to argue that he should receive a
new trial on the S 1983 if we order a new trial under Title IX.
Accordingly, we need not discuss whether the apparent inconsistency in
the verdicts could justify ordering a new trial on both claims as is
sometimes proper under our the analysis in Mosley v. Wilson, 102 F.3d
85, 89-91 (3d Cir. 1996).

                               18
defendants' motion for a new trial and remand this matter
to the district court for further proceedings consistent with
this opinion.8

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

_________________________________________________________________

8. In light of our holding, we will instruct the district court to vacate
its
award of attorney's fees for plaintiff. See Baumgartner v. Harrisburg
Housing Authority, 21 F. 3d 541, 544 (3rd Cir. 1994) (In order to receive
an award of attorney's fees under 42 U.S.C. S 1988 "a plaintiff must
receive at least some relief on the merits of his[/her] claim before
he[/she] can be said to prevail.").

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