                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 08a0054n.06
                             Filed: January 15, 2008

                                                    07-5103

                              UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT


AMBREA C. PHILLIPS, a minor, by her                      )
father and next of kin, AUDIE L.                         )
PHILLIPS, and AUDIE PHILLIPS,                            )
individually,                                            )
                                                         )
        Plaintiffs-Appellants,                           )    ON APPEAL FROM THE UNITED
                                                         )    STATES DISTRICT COURT FOR THE
v.                                                       )    EASTERN DISTRICT OF TENNESSEE
                                                         )
ANDERSON COUNTY                    BOARD         OF      )
EDUCATION,                                               )
                                                         )
        Defendant-Appellee.                              )




        Before: DAUGHTREY and GILMAN, Circuit Judges; EDMUNDS,* District Judge.


        PER CURIAM. In this sex discrimination case, plaintiff Ambrea Phillips1 challenges

the order of the district court granting summary judgment to the defendant, Anderson

County Board of Education, on her claims under 42 U.S.C. § 1983 and Title IX of the

Education Amendments of 1972, 20 U.S.C. § 1681. Phillips contends (1) that the summary

judgment order was premature, thereby depriving her of the opportunity to complete


        *
         The Hon. Nancy G. Edm unds, United States District Judge for the Eastern District of Michigan, sitting
by designation.

        1
          The plaintiff concedes on appeal that the district court correctly dism issed her father, Audie Phillips,
as a party because she has attained the age of m ajority, because parental loss of consortium is not cognizable
under Section 1983 and because, as a parent, he lacks standing to assert a Title IX claim .
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Phillips v. Anderson County Board of Education

discovery, and (2) that the district court erred in finding that the defendant Board of

Education was not liable for discriminating against her on the basis of her gender.

Because we find no reversible error in connection with the decision to grant summary

judgment to the defendant, and because the plaintiff has failed to demonstrate that

additional discovery would have aided her case against the Board, we affirm the district

court’s judgment.


                    I. FACTUAL AND PROCEDURAL BACKGROUND


       At the time of the events that gave rise to this litigation, Ambrea Phillips was a senior

at Anderson County High School. In her last semester before graduation she enrolled in

the school’s Office Tech Co-Op program, which employed her outside the school during

the two morning periods of the four-period academic day. Her schedule at the beginning

of the spring semester in January 2006 called for her to have lunch immediately after her

morning at Co-Op, followed by physical education during the third period and Government

and Economics in the fourth period. The third-period “weightlifting and conditioning” class

in which the plaintiff enrolled was scheduled to include approximately 30 male students,

Phillips, and one other female student. The course was not new, having been offered for

several years to both male and female students, and an additional weightlifting class with

both male and female students was offered that same semester during a different class

period. As part of the course, students were required to spot one another, which required

some minimal physical contact.


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Phillips v. Anderson County Board of Education

       The circumstances of Phillips’s removal from the weightlifting class are disputed, but

the district court correctly found that the dispute was not material to the determination of

the defendant’s motion for summary judgment. The defendant claimed that Phillips was

removed after the other female student withdrew from the class on Thursday, January 5.

On Friday, January 6, Principal Bob McCracken consulted with the weightlifting teacher,

Josh Kerr, and decided to removed Phillips from the course for safety and liability reasons.

McCracken said that he was concerned specifically about Phillips’s safety, the school’s

liability, and the risk of sexual assault. Phillips maintained, however, that the other female

student was still part of the class on Friday, January 6, when Rhonda Woodfin, a secretary

from the guidance office, approached the pair of female students in the weightlifting class

and informed them they were being removed because they were the only girls enrolled in

the class.


       On Monday, January 9, Phillips spoke with McCracken and another school official,

Murrell Albright, about her removal from the weightlifting class. They informed her that

they could not permit enrollment consisting of all male students, a male teacher, and one

or two female students.      That same day Phillips’s father, Audie Phillips, contacted

Anderson County High School to confirm that his daughter was not removed from the class

for being in trouble and spoke to Albright. Audie Phillips then “mentioned” Title IX, but

Albright informed him that it was “our school” and that his daughter would not be returned

to the class.



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Phillips v. Anderson County Board of Education

       At this point, instead of contacting someone at the county Board of Education, Audie

Phillips called a local television station and the Tennessee Department of Education. A

news reporter from the television station interviewed McCracken on Wednesday, January

11, at which time McCracken confirmed that Phillips had been removed from class

because he was concerned for her safety in a classroom filled almost exclusively with boys.

That same day, a state attorney contacted the Anderson County Director of Schools, V.L.

Stonecipher, to inform him of the possible Title IX violation. Stonecipher met with

McCracken and told him, “[Y]ou need to take care of this, if you dropped somebody from

a class make sure it’s not because of their [sic] sex.” Stonecipher also instructed the Board

of Education’s Title IX Coordinator, Chuck Puglisi, to investigate. Puglisi met with the

plaintiff immediately and, later that afternoon, McCracken informed her that she had been

reinstated to the weightlifting class.


       Phillips returned to weightlifting class the next day, having missed only three days

of instructional time. She had no subsequent problems with the course, received an A in

the class, and graduated at the end of the semester. Nevertheless, Phillips and her father

filed a complaint against the Anderson County Board of Education in federal district court,

asserting violations of her rights under Section 1983 and Title IX and claiming $1,000,000

in damages. Those damages were predicated on the plaintiff’s allegation that the stress

of her removal from class caused her to be unable to eat and thereby weakened her

physical condition to such an extent that she subsequently contracted mononucleosis.



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       In response to the defendant’s motion for summary judgment, the plaintiff noted that

she had sought and been granted judicial permission to take further depositions, which had

not yet been completed; she therefore urged the district court to find the motion for

summary judgment premature in light of the incomplete depositions. Arguing in favor of

delay, the plaintiff asserted that further discovery would establish that the defendant had

previously ignored or covered up allegations of discrimination on two occasions. The first

involved an alleged affair between a high school principal and an employee; the principal

was subsequently transferred to another high school. In the second incident, the assistant

volleyball coach at Anderson County High School allegedly carried on an inappropriate

relationship with a player on the volleyball team. These incidents, the plaintiff maintained,

establish a pattern or policy on the part of the defendant of indifference toward “sexual

misconduct.”


       The judge nevertheless granted summary judgment in favor of the defendants and

dismissed plaintiff’s claims with prejudice. From that order, the plaintiff now appeals.


                                     II. DISCUSSION


       We review de novo the grant of summary judgment by a district court. See Ciminillo

v. Streicher, 434 F.3d 461, 464 (6th Cir. 2006). Summary judgment is proper where “the

pleadings, depositions, answers to interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as to any material fact and that

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

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Phillips v. Anderson County Board of Education

genuine issue of material fact exists only when, assuming the truth of the non-moving

party’s evidence and construing all inferences from that evidence in the light most

favorable to the non-moving party, there is sufficient evidence for a trier of fact to find for

that party.   A non-moving party cannot withstand summary judgment, however, by

introducing a “mere scintilla” of evidence in its favor. See Ciminillo, 434 F.3d at 464.


A. Prematurity of the Summary Judgment Motion


       Phillips claims that the district court erred by granting the defendant’s motion for

summary judgment while discovery was still ongoing, especially in light of pending

depositions. The plaintiff contends that the district court’s ruling on the summary judgment

motion denied her the opportunity to produce sufficient evidence of the defendant’s policy

of disregarding sex discrimination in the school district. Specifically, plaintiff now argues

that she needed deposition testimony from school district employees to establish past

inappropriate relationships between a volleyball coach and a player, and a principal and

an employee. As noted above, the plaintiff raised this issue in her brief in opposition to the

defendant’s motion for summary judgment, but she did not file a Rule 56(f) affidavit

notifying the court of her need for continued discovery. As a result, the district court

declined to delay its ruling on the motion for summary judgment.


       Disputes regarding discovery matters are reviewed for abuse of discretion, and “a

plaintiff complaining that a district court granted summary judgment without allowing

adequate discovery must, at a minimum, be able to show that he could obtain information

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Phillips v. Anderson County Board of Education

through discovery that would disclose material facts.” Sierra Club v. Slater, 120 F.3d 623,

638 (6th Cir. 1997) (internal quotation marks and citation omitted). However, where the

complaining party does not comply with the mandates of Rule 56(f) and fails to file either

an affidavit or a motion giving the district court the opportunity to assess the need for more

discovery, “this court will not normally address whether there was adequate time for

discovery.” Cacevic v. City of Hazel Park, 226 F.3d 483, 488 (6th Cir. 2000) (internal

citations omitted). Although the plaintiff here raised her concerns about the inadequacy

of discovery prior to summary judgment, she did so improperly, as the district court

correctly noted. Moreover, even if we were to reach the substance of the claim, as did the

district, we would find no legal or factual relevance between the allegations of “sexual

misconduct” cited by the plaintiff and the allegation of discrimination in her complaint.


B. The Gender Discrimination Claims Under § 1983 and Title IX


       As the district court noted in its memorandum opinion, a claim under Section 1983

may be maintained to redress the deprivation “of any rights, privileges, or immunities

secured by the Constitution and laws” arising from “any statute, ordinance, regulation,

custom, or usage, of any State.” 42 U.S.C. § 1983. The court also identified the

appropriate standard applicable here, observing that “[a] municipal liability claim against

. . . [a] School Board must be examined by applying a two-pronged inquiry: (1) Whether the

plaintiff has asserted the deprivation of a constitutional right at all; and (2) Whether . . . the

School Board is responsible for that violation.” Doe v. Claiborne County, 103 F.3d 495,


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505 (6th Cir. 1996). For plaintiff to succeed in her claim, of course, she must offer

evidence sufficient for a jury to answer both questions affirmatively. In this case, the

plaintiff might well be able to establish to a jury’s satisfaction that she suffered a

constitutional deprivation when she was temporarily prevented from attending class on the

basis of her gender alone, a proposition that the district court assumed without deciding.

But the district court also found, correctly we conclude, that she could not demonstrate that

the Anderson County Board of Education was responsible, and therefore liable, for the

violation of her rights.


       In reaching that conclusion, the district court engaged in a thorough analysis of the

applicable statutes and case law. Common to the court’s disposition of both the civil rights

claim and the Title IX claim were its determinations that, even after taking the plaintiff’s

allegations as true, the record established that Principal McCracken was not executing an

official policy of the Board at the time he ordered the plaintiff’s removal from class, nor was

he acting as a policy-maker on behalf of the Board; that the Board had played no part in

the decision to remove the plaintiff from the weightlifting class; and that the Board had not

failed to investigate the plaintiff’s complaint, instead taking immediate action on her behalf

to correct the situation as soon as the Director of Schools learned of the problem from an

outside source. Certainly, there is no proof that after the Board had notice of the plaintiff’s

claim, it “act[ed] with deliberate indifference to known acts of [discrimination].” Davis v.

Monroe County Board of Education, 526 U.S. 629, 633 (1999).



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       Because the reasons why judgment should be entered for the defendant have been

fully articulated by the district court, the issuance of a detailed opinion by this court would

be duplicative and would serve no useful purpose. Accordingly, we AFFIRM the judgment

of the district court upon the reasoning set out by that court in its memorandum opinion

filed on December 19, 2006.




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