                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                September 10, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                                  TENTH CIRCUIT



 J.M., a minor, by and through her
 parents and next friends; THOMAS and
 REBECCA MORRIS,

                Plaintiffs - Appellees/
                Cross-Appellants,                   Nos. 08-7104 & 08-7105
           v.                                           (E.D. Oklahoma)
 HILLDALE INDEPENDENT SCHOOL                    (D.C. No. 6:07-CV-00367-JHP)
 DISTRICT NO. 1-29, of Muskogee
 County, Oklahoma, also known as
 Hilldale Public Schools,

                Defendant - Appellant/
                Cross-Appellee,

 and

 BRIAN GIACOMO,

                Defendant/Cross-Appellee.


                             ORDER AND JUDGMENT *


Before MURPHY and HOLMES, Circuit Judges, and ARMIJO, ** District Judge.



       *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
       **
        The Honorable M. Christina Armijo, United States District Judge for the
District of New Mexico, sitting by designation.
I.    Introduction

      Defendant-Appellant Hilldale Independent School District (Hilldale)

appeals the district court’s denial of its motion for judgment as a matter of law. It

further challenges selected evidentiary rulings, the basis for permitting certain

legal theories to go to the jury, the entry of inconsistent verdicts, and the

plaintiff’s perceived double recovery. Plaintiff-Appellee and Cross-Appellant,

J.M. by and through her parents and next friends, Thomas and Rebecca Morris,

(J.M.) contends that the district court improperly reduced the jury’s verdict. We

exercise jurisdiction under 28 U.S.C. §1291 and AFFIRM the district court.

II.   Factual Background

      During the course of 2005-2006 school year and through November 2006,

Brian Giacomo, a high school band teacher, and J.M., a student, maintained an

inappropriate relationship, which included kissing, hugging, petting, and vaginal

and oral sex. The activities occurred on and off school property. In April 2006,

after the sexual relationship began, Giacomo took the Hilldale band, of which

J.M. was a member, on an out of state trip to St. Louis, Missouri. During that

trip, another band member, Mikel Pembrook, knocked on the closed door of

Giacomo’s hotel room to inquire about dinner plans. When Giacomo opened the

door, Pembrook observed J.M. lying on the bed.



                                          -2-
      After the band trip, J.M. received an award for being the most improved

band student. Pembrook was unhappy that J.M. received the award and initiated a

confrontation. Pembrook called J.M. a “slut” and attributed the award to her

relationship with her “pedophile boyfriend.” J.M. reported the confrontation to

Giacomo, who arranged for Pembrook to meet with Assistant Principal, Darren

Riddle. Giacomo also attended the meeting. During the meeting, Pembrook told

Riddle that he thought Giacomo was a pedophile and that he saw Giacomo alone

in a hotel room with a female student. Pembrook testified, and Giacomo

corroborated, that Riddle became hostile to Pembrook during the conversation.

Riddle then arranged to meet with Pembrook’s parents, and according to J.M.,

threatened Pembrook’s parents that if the “pedophile rumors” did not stop,

Pembrook would be suspended or expelled. Following the meeting with

Pembrook’s parents, Riddle recommended to D.B. Merrill, the school

superintendent, that he deny Pembrook’s transfer, which allowed him to attend

Hilldale even though he lived in another district. According to J.M., the transfer

was denied in part because of Pembrook’s report of Giacomo’s conduct to Riddle.

      Riddle testified that he also passed the information on to the principal,

Gary Pemberton. It appears that nothing further happened, however, until

November 2006, when the parents of another female student, S.R., alerted the

Hilldale officials to evidence that they had discovered, which indicated an

inappropriate relationship between their daughter and Giacomo. Hilldale

                                         -3-
suspended Giacomo, and he resigned the next day. At that point, Hilldale began

to investigate Giacomo. After a parent’s meeting, J.M.’s mother initiated a

discussion with J.M., who admitted to her relationship with Giacomo. J.M.’s

family moved to another school district. J.M. sought treatment with a psychiatrist

and was diagnosed with post-traumatic stress disorder and major depressive

disorder. She was prescribed antidepressant and anti-anxiety medications.

      On November 2, 2007, J.M. filed suit against Hilldale and Giacomo for

violations of Title IX, § 1983, and common law negligence. Hilldale filed a

motion for summary judgment, which was denied by the district court. The case

went to trial before a jury in August 2008. The jury returned verdicts in J.M.’s

favor on the Title IX claim, two § 1983 claims, and the negligence claim, and the

jury found in favor of Hilldale on a third § 1983 claim and a second negligence

claim. The jury awarded J.M. $150,000 in damages on each claim for a total of

$600,000 against Hilldale. In addition, the jury awarded damages against

Giacomo for assault, battery, and intentional infliction of emotional distress, for a

total of $1,900,000 and an additional $500,000 in punitive damages. After

considering a motion from Hilldale, the district court eliminated one of the

$150,000 verdicts, finding that the two § 1983 claims were duplicative, and also

reduced the state tort verdict from $150,000 to $125,000 to reflect a statutory cap

on damages. Hilldale appeals and J.M. cross appeals from the jury’s verdicts and

the district court’s rulings.

                                         -4-
III.   Discussion

       Hilldale raises four issues. First, Hilldale argues that the district court

erred by denying Hilldale’s motion for judgment as a matter of law with respect

to the Title IX claim, the § 1983 inaction claim, and the state tort claims. Related

to the Title IX claim, Hilldale contends that the district court improperly excluded

J.M.’s diary and evidence of her prior sexual history, and as a result of the

exclusion, Hilldale was unable to disprove one of the elements of the Title IX

claim. Second, Hilldale contends for the first time on appeal that the district

court wrongly permitted the § 1983 danger creation theory to go to the jury.

Finally, Hilldale maintains that the district court entered irreconcilably

inconsistent verdicts and fourth, that the judgment permitted double recovery. In

her cross appeal, J.M. contends that the district court improperly reduced the

jury’s award when it determined that two of the verdicts were duplicative.

       In addition to the issues presented in this appeal, two motions remain

outstanding before this Court: Hilldale has moved to supplement the record and

has moved to file portions of the record under seal. Both motions were

provisionally granted and reserved for final ruling by this panel. We first address

Hilldale’s outstanding motion relating to the adequacy of the designated record.

Hilldale has challenged the evidence to support the verdict but filed only excerpts

of the trial transcript, contrary to 10th Cir. Rule 10.1.(A)(1)(a). Arguing that the

failure to file the entire transcript was a good faith error, Hilldale requests

                                          -5-
permission to supplement the record with the entire transcript. J.M. responds that

dismissal of the substantial evidence appeal is required because the error was not

in good faith and supplementation of the record would prejudice J.M.

      The cases cited by J.M. do not suggest that a motion to supplement the

record should be automatically denied and a substantial evidence appeal should be

immediately dismissed. Instead, Quarles v. Spess Oil Co., Inc., No. 08-5058,

2009 WL 319624 (10th Cir. Feb. 10, 2009), considered an appeal where no

motion to supplement the inadequate record was filed. The Court therefore

admonished that “[o]nce again, it is incumbent upon us to remind litigants that we

regularly decline to hear claims that are premised upon record evidence that is not

included in the appendix.” Id. at *3. In Blackwell v. SKO Mgmt., Inc., 64

Fed.Appx. 725 (10th Cir. 2003), the plaintiff challenged the sufficiency of the

evidence and failed to provide a transcript. Id. at *1. He filed a motion to

supplement the appendix but only offered portions of the transcript as

supplementation. Id. The Court denied the motion to supplement and rejected the

Plaintiff’s sufficiency argument. Id. at * 1-2. Finally, in Roberts v. Roadway

Exp., Inc, 149 F.3d 1098 (10th Cir. 1998), the Court refused to consider a

sufficiency claim because only excerpts of the transcript were provided, but the

case did not apparently address a motion to supplement the appendix. Id. at 1004-

05.




                                         -6-
      In the present case, Hilldale argues that it failed to provide a full transcript

in good faith and accordingly filed a motion to place the entire transcript in the

appendix. Based on the motion to supplement, Hilldale does not expect the Court

to consider its sufficiency claim without the full transcript, as did the appellant in

Quarles. Nor has Hilldale offered to supplement only with excerpts of the

transcript as was the case in Blackwell and Roberts. As a result, it appears to be a

good faith error. The motion to supplement and consider the entire transcript is

granted.

      Hilldale has also filed a second motion, requesting that its briefs and

appendix be filed under seal due to references to J.M.’s prior sexual history, as

well as the excerpts from her diary. It does not appear that J.M. opposes this

motion, and it is hereby granted. We now turn to Hilldale’s appeal.

A.    Sufficiency of the Evidence

      After the jury returned its verdict, Hilldale filed a motion for judgment as a

matter of law and argued that the jury did not have sufficient evidence to find for

J.M. on the Title IX, § 1983, and state tort claims. The district court denied these

claims, simply stating that these issues were previously addressed by the Court.

Aplt.App., Vol. I, at 249. Presumably, the district court was referring to its earlier

order, which denied Hilldale summary judgment on these issues. Aplt.App., Vol.

I, at 23. We address each argument in turn.




                                          -7-
      This Court reviews the “denial of a motion for judgment as a matter of law

de novo, taking the evidence and all reasonable inferences drawn therefrom in the

light most favorable to . . . the non-movant.” N. Am. Specialty Ins. Co. v. Britt

Paulk Ins. Agency, Inc., 579 F.3d 1106, 1111 (10th Cir. 2009). “Judgment as a

matter of law is appropriate only if the evidence points but one way and is

susceptible to no reasonable inferences which may support the nonmoving party’s

position.” Id. (internal quotation marks and citation omitted). Further,

“[j]udgment as a matter of law is appropriate only when the evidence presented at

trial does not permit a reasonable jury to find for the non-movant.” Manzanares

v. Higdon, 575 F.3d 1135, 1142 (10th Cir. 2009). We do “not weigh evidence,

judge witness credibility, or challenge the factual conclusions of the jury.” Id.

(internal quotation marks and citation omitted).

1.    Title IX

      “Title IX prohibits sex discrimination by recipients of federal education

funding[; the] statute provides that ‘[n]o 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.’” Jackson v. Birmingham Bd. of Educ., 544 U.S.

167, 173 (2005) (quoting 20 U.S.C. § 1681I(a)). Title IX implies a private right

of action for monetary damages to enforce its prohibition of intentional sex




                                         -8-
discrimination “in the form of a recipient’s deliberate indifference to a teacher’s

sexual harassment of a student.” Id.

      A damages remedy, however, 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 v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998). The failure to

respond to discrimination, in turn, must amount to “deliberate indifference,” or

“an official decision . . . not to remedy the violation.” Id. This is because

“[u]nder a lower standard, there would be a risk that the recipient would be liable

in damages not for its own official decision but instead for its employees’

independent actions.” Id. at 290-91. In Davis v. Monroe County Bd. of Educ.,

526 U.S. 629 (1999), the Supreme Court further clarified the elements of a Title

IX action: (1) an official is deliberately indifferent to sexual harassment (2) of

which there was actual knowledge; (3) and the harassment “is so severe,

pervasive, and objectively offensive that it can be said to deprive the victims of

access to the educational opportunities or benefits provided by the school.” Id. at

650. Hilldale argues that (1) it did not have actual knowledge of the harassment,

(2) its response was not clearly unreasonable and therefore did not amount to

deliberate indifference, and (3) it was prevented by the district court’s evidentiary




                                          -9-
ruling from showing that the harassment did not deprive J.M. of access to

education.

a.    Actual Knowledge

      Hilldale contends that the only evidence of actual knowledge was

Pembrook’s report to Riddle regarding J.M.’s presence in Giacomo’s hotel room

in St. Louis. Citing Gebser and Escue v. N. Oklahoma College, 450 F.3d 1146

(10th Cir. 2006), Hilldale argues that this evidence is insufficient to establish

actual knowledge. In Gebser, the Supreme Court concluded that a school district

did not have actual knowledge because the information available was a complaint

from the parents of a student who was not the plaintiff, charging that the teacher

in question had made inappropriate comments during class. 524 U.S. at 291. The

report was “plainly insufficient to alert the principal to the possibility that [the

teacher] was involved in a sexual relationship with a student.” Id. In Escue, a

university had information that the professor in question had dated two students

who were near his own age and that nearly a decade before the events about

which the plaintiff sued, the professor had been accused of a single incident of

inappropriate touching and a single incident of inappropriate name calling. 450

F.3d at 1154. These prior incidents, this Court concluded, did not provide the

college with “actual knowledge that [the teacher] presented a ‘substantial risk of

abuse’ to other students—indeed, one of the incidents involved no physical

contact whatsoever, the other was an isolated incident, and neither involved

                                          -10-
anywhere near the degree of overt and pervasive harassment that [the plaintiff]

alleges constituted a hostile educational environment.” Id.

      In Gebser, the complaint received by school officials was of a different

type than the ultimate misconduct: the parents complained of inappropriate

comments during class and the basis for the Title IX suit was a sexual relationship

with a student. Similarly, in Escue, the prior complaints were stale and of a

significantly different nature than those later made by the plaintiff. Both Gebser

and Escue concluded that from the types of complaints made, the eventual alleged

conduct could not have been anticipated—that the officials could not be deemed

to have knowledge of a risk that the teacher would sexually harass the plaintiff

who later filed suit. In the present case, the conduct that was reported as it related

to a young high school student having a sexual relationship with a teacher—if the

report was sufficient, as we discuss in subsequent paragraphs—was the same

conduct that was eventually unearthed and to which J.M. and Giacomo admitted.

We view Gebser and Escue to be of little avail to Hilldale.

      At trial, the parties offered a great deal of conflicting testimony regarding

the report made by Pembrook in May 2006.

i.    Riddle’s Trial Testimony

      Riddle testified first. He explained that Pembrook simply reported that

during a band trip to St. Louis, Giacomo and J.M. were seen in a motel room

together, with the door propped open. Aplt.Supp.App., Vol. I, at 18, 86, 88.

                                          -11-
According to Riddle, Pembrook stated that J.M. was sitting on the bed, Giacomo

was standing nearby, and they were talking. Aplt.Supp.App., Vol. I, at 88.

Riddle further testified that he stopped his investigation of Pembrook’s report

when Pembrook recanted the story and admitted to Riddle that he had been lying.

Aplt.Supp.App., Vol. I, at 31. Specifically, Riddle stated that Pembrook made the

report because he was upset that J.M. was getting attention and favoritism in

band. Aplt.Supp.App., Vol. I, at 87. Finally, Riddle testified that he discussed

Pembrook’s report with D.B. Merrill, the district superintendent, in the context of

whether to permit Pembrook to remain as a transfer student in the Hilldale

district. Aplt.Supp.App., Vol. I, at 137-38.

ii.   Merrill’s Trial Testimony

      Merrill disputed this, stating that he was not aware of any allegations

against Giacomo until November 2006. Aplt.Supp.App., Vol. 1, at 161-62.

Regarding Pembrook’s transfer request, Merrill testified that Riddle reported only

that Pembrook had made false accusations—that he had been untruthful—and not

that Pembrook had made allegations of sexual misconduct. Aplt.Supp.App., Vol.

I, at 162. Further, Merrill testified that he was under the impression, based on

Riddle’s report, that Pembrook reported to Riddle that the motel room door was

open. Aplt.Supp.App., Vol. I, at 172, 184-85.




                                        -12-
iii.   Pemberton’s Trial Testimony

       Pemberton, the principal, testified to a different set of events. Pemberton

stated that in May 2006, Pembrook made a comment that “a young lady had been

in a motel room with Mr. Giacomo with the door closed.” Aplt.Supp.App., Vol.

II, at 234; see Aplt.Supp.App., Vol. II, at 509. Importantly, Pemberton testified

that Riddle informed him in May about the situation and that Pembrook was

claiming to have seen J.M. and Giacomo in a motel room, with the door closed.

Aplt.Supp.App., Vol. II, at 512. Riddle assured Pemberton that he had

investigated the situation and talked to all of the students who had gone on the

trip. Aplt.Supp.App., Vol. II, at 234. In addition, Riddle told Pemberton that the

incident had been completely fabricated, that the girl was never alone in a room

with Giacomo and that a number of kids were in the room watching television and

talking. Id. Specifically, Riddle told Pemberton that “there was never a time that

he was aware of through his investigation that there was a female in the room

alone with the door open or closed.” Aplt.Supp.App., Vol. II, at 236. Later, after

Giacomo resigned, Riddle came to Pemberton’s office and told Pemberton that he

in fact had not investigated Pembrook’s allegations, that he did not talk to

everyone that was on the trip. Aplt.Supp.App., Vol. II, at 254. Riddle told

Pemberton that back in May, he was “just convinced that nothing happened.” Id.




                                        -13-
iv.   Pembrook’s Trial Testimony

      Pembrook testified about what he witnessed in St. Louis and about his later

report of the incident. He explained that when he went to Giacomo’s motel room

door, it was closed, and after he knocked and Giacomo opened the door,

Pembrook saw J.M. lying on the bed. Aplt.Supp.App., Vol. II, at 446. During the

trial, Pembrook admitted that he could not remember what he told Riddle in May,

but it was established that the word “pedophile” was used during the meetings and

that Pembrook told Riddle that J.M. was the student who was in the motel room

with Giacomo. Aplt.Supp.App., Vol. II, at 452, 453-54, 469. Pembrook,

however, also testified that he did not tell Riddle that the motel room door was

closed. Aplt.Supp.App., Vol. II, at 460. In addition, Pembrook denied having

recanted the story at any time. Aplt.Supp.App., Vol. II, at 462. While

Pembrook’s testimony was confusing and at times contradictory, near the end of

his examination he explained that he was “very nervous about this” and that

“[t]he presence of people [made him] a little more nervous” than when he gave

his deposition. Aplt.Supp.App., Vol. II, at 496.

v.    Giacomo’s Trial Testimony

      Finally, Giacomo testified. He would not explain the events that occurred

in St. Louis, Aplt.Supp.App., Vol. III, at 657, but he did state that he took

Pembrook to Riddle’s office for discipline after Pembrook called J.M. a slut and

referred to Giacomo as her “pedophile boyfriend.” Aplt.Supp.App., Vol. III, at

                                         -14-
656-57. Giacomo was certain the word pedophile was used during the meeting

between himself, Pembrook, and Riddle. Aplt.Supp.App., Vol. III, at 657.

Giacomo also confirmed Riddle’s statement that Riddle informed Merrill about

Pembrook’s allegations. Aplt.Supp.App., Vol. III, at 677. In addition, Giacomo

testified that Riddle did not question him at all about Pembrook’s

allegations—Riddle asked Giacomo no questions in May 2006. Aplt.Supp.App.,

Vol. III, at 744.

       Review of the testimony demonstrates that the question of actual

knowledge in this case was truly a question of fact for the jury. The jury was

required to determine whether Pembrook, Riddle, Merrill, Giacomo, or Pemberton

testified credibly about the contents of Pembrook’s May 2006 Report. The

verdict indicates that the jury credited the principal, Pemberton: that Riddle

initially reported to him in May that Pembrook alleged that Giacomo and a

student were together in a hotel room with the door closed. 1

       Although “Gebser makes clear that actual notice requires more than a

simple report of inappropriate conduct by a teacher . . . the actual notice standard

does not set the bar so high that a school district is not put on notice until it

receives a clearly credible report of sexual abuse from the plaintiff-student.”

       1
         Although Pembrook testified at trial that he did not tell Riddle that the
door was closed, the jury could have reasonably concluded that at the time of
trial, Pembrook either didn’t remember, he was nervous (as he stated during his
testimony), or he was distracted by the fact that he was shipping off the next day
to begin his Army career. Aplt.Supp.App., Vol. II, at 443.

                                          -15-
Escue, 450 F.3d at 1154 (alteration in original) (internal quotation marks and

citation omitted). Thus, Hilldale’s assertions—that Riddle did not believe

Pembrook’s allegations—are insufficient alone to establish that the district did

not have actual notice. Rather, because Pemberton testified that he received

information from Riddle that a teacher had been in a motel room behind a closed

door with a student and that Pembrook accused Giacomo of being a pedophile, the

jury could reasonably have concluded that Pembrook’s May 2006 report was

sufficient to provide Riddle and Pemberton, and thereby Hilldale, with actual

knowledge of an inappropriate sexual relationship between J.M. and Giacomo.

See Gebser, 524 U.S. at 291 (requiring sufficient information “to alert the

principal to the possibility that [the teacher] was involved in a sexual relationship

with a student”).

b.    Deliberate Indifference

      Turning to the next prong of the analysis, deliberate indifference exists

where the response “to the harassment or lack thereof is clearly unreasonable in

light of the known circumstances.” Davis, 526 U.S. at 648. The Supreme Court

of the United States has made clear that “[i]n an appropriate case, there is no

reason why courts, on a motion to dismiss, for summary judgment, or for a

directed verdict, could not identify a response as not clearly unreasonable as a

matter of law.” Id. at 649 (internal quotation marks and citation omitted).

Hilldale contends that J.M. cannot establish that Riddle’s response to Pembrook’s

                                         -16-
report was unreasonable because Riddle and other adults did not find Pembrook to

be credible. Specifically, Hilldale asserts that both “Riddle and [Pembrook]’s

mother concluded that [Pembrook]’s statements about what he saw on the St.

Louis band trip did not support his assertion that Giacomo was a pedophile.”

Therefore, Hilldale argues, the “jury may have believed that Riddle was inept,

erroneous, or even negligent, but they could not fairly have concluded that he was

deliberately indifferent.” See Doe v. Dallas Indep. Sch. Dist., 153 F.3d 211, 219

(5th Cir. 1998).

      Hilldale relies in part on Doe. In that case, the Fifth Circuit considered

whether a school principal—who met with a complaining student, his mother, and

the teacher and determined that the allegations of sexual harassment were not

true—was deliberately indifferent for failing to further investigate the teacher.

Id. at 219. The Court concluded that “[t]he fact that [the principal] misread the

situation and made a tragic error in judgment does not create a genuine issue of

material fact as to whether she acted with deliberate indifference toward [the

student’s] constitutional rights.” Id. Hilldale likens Doe to the present case where

Riddle met with Pembrook, a student who reported allegations of a teacher

engaging in improper conduct with another student, and took no further action

after determining that Pembrook’s report was not credible. In the present case,

however, Riddle took no steps to determine the credibility of the report— there

was testimony at trial that although Pembrook identified J.M. as the student

                                         -17-
involved, Riddle did not speak to her or her parents, nor did he question Giacomo

about the incident. Aplt.Supp.App., Vol. I, at 22 (Riddle did not call J.M.’s

parents), Aplt.Supp.App., Vol. I, at 43 (Riddle did not speak with J.M.);

Aplt.Supp.App., Vol. II, at 470 (Pembrook identified J.M.); Aplt.Supp.App., Vol.

III, at744 (Giacomo was not questioned). Unlike the principal in Doe, Riddle

took no action at all to investigate the allegations. Instead, the testimony

supported a conclusion that Riddle informed Merrill of Pembrook’s allegations

and recommended that Pembrook—who was not a resident of the Hilldale school

district and only attended Hilldale by permission—be removed from the transfer

list and thereby not permitted to attend school in the Hilldale district.

Aplt.Supp.App., Vol. I, at 137. Ultimately, Pembrook’s transfer request was

denied. Aplt.Supp.App., Vol. I, at 162.

      Hilldale also cites Gordon ex rel. Gordon v. Ottawa Cmty. Sch. Dist., 115

F.Supp.2d 1077 (S.D. Iowa 2000), for the proposition that a court “must examine

the adequacy of the response, in light of the seriousness and credibility of the

complaint that puts school officials on notice.” Id. at 1082-83 (internal quotation

marks and citations omitted). Thus, Hilldale argues, “Riddle’s assessment of

[Pembrook]’s credibility is fundamental to the issue of whether [Riddle] acted

with deliberate indifference.” The Court, in Gordon, weighed a number of factors

in “assessing” the official response to a report of sexual harassment. See id. at

1083. The school official spoke with the alleged victim’s parents and the alleged

                                          -18-
perpetrator and the official worked out an arrangement with the victim’s mother

regarding the perpetrator’s presence on school property. Id. J.M. presented

evidence that Riddle summarily dismissed Pembrook’s report, without any

assessment of the plausibility of the circumstances and without any investigation.

While Pembrook’s credibility is certainly relevant, see Gordon, Hilldale can point

to no authority which would support a holding that Riddle’s subjective assessment

of Pembrook’s credibility, standing alone, constituted a sufficient investigation in

light of the facts reported to him by Pembrook. In other words, it is the substance

of the report, independent from the perceived lack of credibility of the informant,

that was sufficient to raise the flag that begged for an investigation of a report of

a minor student being present in a closed motel room with her teacher. Riddle’s

snap conclusion that Pembrook was not to be believed could not operate to

obviate the need for an investigation.

      “Although no particular response is required, and although the school

district is not required to eradicate all sexual harassment, the school district must

respond and must do so reasonably in light of the known circumstances.” Vance

v. Spencer County Public Sch. Dist., 231 F.3d 253, 260-61 (6th Cir. 2000). As

the district court pointed out, it was undisputed that after Pembrook’s report, no

school official conducted any investigation of Giacomo. Aplt.Supp.App., Vol. II,

at 234-35. Riddle did not confront Giacomo or question any students apart from

Pembrook. See Doe v. School Admin. Dist. No. 19, 66 F.Supp.2d 57, 64 (D.Me.

                                          -19-
1999) (concluding that a jury could find unreasonable a principal’s failure to

question the teacher or other students about allegations that the teacher was

having sexual relations with a student). A reasonable jury could have concluded

that such a lack of response, given the information that Pembrook provided and

Riddle’s reaction, was not reasonable.

c.    Access to Education

      Hilldale’s third argument, related to whether the harassment affected J.M.’s

access to education, is tied to its evidentiary argument. Prior to trial, J.M. filed a

motion in limine to exclude evidence of her journal and her prior sexual behavior.

Hilldale filed motions pursuant to Fed. R. Evid. 412(c), which outlines the

procedure for determining the admissibility of evidence relating to the victim in

sex offense cases. The district court granted J.M.’s motion and excluded the

evidence. On appeal, Hilldale argues that the evidence that was excluded was the

proof necessary to establish that the sexual harassment did not deprive J.M. of

educational opportunities.

      Under Fed. R. Evid. 412(a)(1) “[e]vidence offered to prove that any alleged

victim engaged in other sexual behavior” is generally not admissible in “any civil

or criminal proceeding” unless an exception applies. In civil cases, the exception

permits the evidence if it is “otherwise admissible under these rules and its

probative value substantially outweighs the danger of harm to any victim and of

unfair prejudice to any party.” Fed. R. Evid. 412(b)(2). Although it initially

                                         -20-
appears that the journal and J.M.’s history are probative, we agree with the

district court that the journal and J.M.’s prior sexual behavior is not admissible

under the current circumstances.

      Hilldale relies on Chancellor v. Pottsgrove Sch. Dist., 529 F.Supp.2d 571

(E.D.Pa. 2008), in support of its theory that because J.M. consented to the sexual

relationship, Giacomo’s sexual harassment was not so severe as to deprive her of

educational opportunities. In that case, a student engaged in a sexual relationship

with her band teacher and then subsequently sued under Title IX. Id. at 574. The

district court permitted evidence that the student consented to the sexual

relationship because although there was no question that a sexual relationship

between a student and a teacher constituted harassment, the student’s “voluntary

participation in sexual activity with [the teacher was] admissible for purposes of

determining whether the harassment rose to the level of ‘severe, pervasive, and

objectively offensive.’” Id. at 576 (quoting Davis, 526 U.S. at 650.)

      Chancellor, however, is distinguishable on two grounds. J.M. does not

dispute that the relationship was voluntary and the evidence from the journals

would therefore be cumulative. Further, Chancellor does not address the

admissibility of a student’s prior sexual history—the case speaks only to the

consensual nature of the relationship between the student and the teacher against

whom the complaint is lodged. Rule 412(b)(2) governs prior sexual history.




                                         -21-
      The probative value of evidence concerning J.M.’s sexual history with

other partners is limited given the evidence that J.M. presented to establish that

she was denied access to education. For example, J.M. presented testimony that

she was ostracized by other students after Giacomo resigned. Aplt.Supp.App.,

Vol. III, at 580. She was placed on antidepressants and anti-anxiety medication.

Aplt.Supp.App., Vol. III, at 589. Her family felt it necessary to move to another

school district. Aplt.Supp.App., Vol. III, at 574. Even in the new school, J.M.

continued to be afraid of the teachers and couldn’t motivate herself to study.

Aplt.Supp.App., Vol. III, at 637. All of these negative impacts on J.M.’s

education resulted directly from the sexual relationship with Giacomo—regardless

of any previous sexual relationships J.M. might have had and despite the fact that

Giacomo did not apply force. The journal and J.M.’s sexual history would not

have been probative on the question of access to education and would simply have

painted J.M. in a negative light.

      Given the sensitive nature of the evidence and J.M.’s age, the district court

did not abuse its discretion by excluding the evidence of J.M.’s prior sexual

history. See Curtis v. Okla. City Pub. Sch. Bd. of Educ., 147 F.3d 1200, 1217

(10th Cir. 1998) (reviewing evidentiary rulings for abuse of discretion); Saffa v.

Okla. Oncology, Inc., 405 F.Supp.2d 1280,1285 (N.D. Okla. 2005) (concluding

that the fact of a prior consensual workplace relationship was not probative of

whether the plaintiff was offended by the defendant’s advances).

                                         -22-
2.    § 1983—Hilldale’s Investigative Policy

      Hilldale contends that the district court improperly denied its motion for

judgment as a matter of law on J.M.’s § 1983 claim that Hilldale had a policy of

failing to investigate sexual harassment.

      A claim of municipal liability for sexual harassment requires that the
      state employee’s discriminatory conduct be representative of an
      official policy or custom of the institution or are taken by an official
      with final policymaking authority. In the absence of an official
      policy, a municipality may still be liable for the widespread and
      persistent practice of sexual harassment which constitutes a custom.

Rost v. K.C. Steamboat Springs RE-2 Sch. Dist., 511 F.3d 1114, 1124-25 (10th

Cir. 2008) (internal citations omitted). J.M. argues that Hilldale maintained a

custom or practice of not investigating allegations of sexual harassment against

students. In order to demonstrate this, J.M. had to prove (1) that Hilldale engaged

in a “continuing, widespread, and persistent pattern of misconduct;” (2) that after

notice of the conduct, policy-making officials demonstrated “deliberate

indifference to or tacit authorization of the conduct;” and (3) that injury resulted

to J.M. as a result of the conduct. Id. at 1125. Hilldale argues that J.M. did not

provide evidence of either a pattern of misconduct or the deliberate indifference

of a policymaker. The district contends that because Giacomo and J.M. tried to

keep their activities secret, there was no evidence that any teacher or

administrator knew of a “continuing, widespread, and persistent pattern of

misconduct.” J.M. responds that Hilldale had no implemented policy of


                                         -23-
investigating sexual harassment claims. The school’s written policy required the

superintendent, Merrill, to investigate. Aplt.Supp.App., Vol. IV, at 2043. But

Merrill testified that he delegated this responsibility to the school principals.

Aplt.Supp.App., Vol. I, at 155. To complete the confusion, the principal,

Pemberton, testified that it was Riddle’s duty to investigate and Riddle testified

that it was Merrill’s obligation. Aplt.Supp.App., Vol. I, at 65 (Riddle);

Aplt.Supp.App., Vol. II, at 243-44 (Pemberton). As the district court concluded

in its order denying summary judgment to Hilldale, “a trier of fact could

determine that the practice and custom was that ultimately, there was no one in

charge of investigating complaints of sexual abuse.” Aplt.App., Vol. I, at 68.

      Hilldale argues that although Riddle chose not to act on Pembrook’s

allegations, because Riddle was not a policy maker, any deliberate indifference on

his part does not subject Hilldale to § 1983 liability. Regardless of Riddle’s

status as a policy maker, J.M. points to evidence that Riddle passed on

Pembrook’s intelligence to Merrill, the superintendent, who also took no action.

Aplt.Supp.App., Vol. I, at 137-38. In response, Hilldale offers authorities holding

that under Oklahoma law, only school board members are final policy makers.

For this proposition, it cites Curtis and Jantz v. Muci, 976 F.2d 623 (10th Cir.

1992) . However, Curtis was a wrongful discharge case in which this Court noted

in passing that a school board was “the final policy-making authority under state

law.” Id., 147 F.3d at 1216; see Jantz, 974 F.2d at 630-31 (holding in a wrongful

                                          -24-
discharge case that only the school board possessed the authority under state law

to hire teachers). The Curtis opinion does not discuss the final policy-making

authority of a school superintendent who is authorized under the written school

policy to implement the sexual harassment policy. Merrill testified that he is the

CEO of the school district, and according to the policy itself, he had the authority

to implement the investigative rules. Aplt.Supp.App., Vol. I, at 153;

Aplt.Supp.App., Vol. IV, at 2043. It further appears from the district court’s

order that Hilldale did not challenge the “official policy maker” element of the §

1983 claim because the court did not address the issue in the order on summary

judgment or any other order in the record provided by Hilldale.

3.    State Tort Claims

      In its final argument relating to the district court’s denial of the motion for

judgment as a matter of law, Hilldale argues that there was insufficient evidence

to support a state law tort claim for negligent supervision. In Oklahoma, an

employer may be held liable for negligent supervision where “at the critical time

of the tortious incident[,] the employer had reason to believe that the person

would create an undue risk of harm to others.” Escue, 450 F.3d at 1156. Hilldale

essentially contends that because there was no evidence of actual knowledge to

support the Title IX claim, there is no evidence that the district would have had

reason to believe that Giacomo created an undue risk of harm to students. See id.

(“[T]his element of the Oklahoma tort of negligent supervision largely overlaps

                                         -25-
with the ‘actual knowledge’ prong of Title IX liability.”). Based on our earlier

analysis, Hilldale had reason to believe that Giacomo could create a risk of harm

to students after Pembrook met with Riddle and Riddle reported to Merrill.

      Hilldale further claims that because it had no prior notice of Giacomo’s

“propensities,” it has no liability under state law. To support this requirement,

Hilldale cites N.H. v. Presbyterian Church (U.S.A.), 1999 OK 88, 998 P.2d 592

(Okla. 1999). N.H., however, does not require that a school district have both a

reason to believe an employee will create an undue risk of harm and prior notice

of propensities. Rather, the Oklahoma Supreme Court equates prior notice with

“reason to believe.” Id. ¶ 20, 998 P.2d at 600. Indeed, this makes sense: it is the

employer’s knowledge prior to the damage that is relevant, whether it is

knowledge of propensity or knowledge of a particular undue risk. In the present

case, there is evidence that Hilldale had a reason to believe that Giacomo was

inappropriately involved with a student prior to the time that the school began an

active investigation.

      In addition, the Oklahoma Supreme Court later classified N.H. as a case in

which “recovery against the employer for an act of his servant is rested on prior

knowledge of the servant’s propensity to commit the very harm for which

damages are sought.” Schovanec v. Archdiocese of Oklahoma City, 2008 OK 70,

¶ 30, 188 P.2d 158, 167. In the present case, liability is not based on Hilldale’s

prior knowledge of Giacomo’s propensities, but instead on Hilldale’s acquired

                                         -26-
knowledge of an ongoing inappropriate relationship and its failure to investigate

further. Review of the district court’s order further suggests that Hilldale did not

challenge the negligent retention and supervision claim on this basis, but instead

argued below that the district did not have a duty under state tort law. Aplt.App.,

Vol. I, at 73-74.

B.    § 1983—Danger Creation

      Hilldale next contends that the district court improperly permitted J.M.’s

danger creation theory to go the jury. Because Hilldale did not challenge the jury

instruction on danger creation, it asserts that the instruction was plain error. See

Williams v. W.D. Sports, N.M., Inc., 497 F.3d 1079, 1094 (10th Cir. 2007)

(“[W]hen a party does not object to an instruction before the district court . . . ,

we can review the district court’s decision to administer the instruction only for

plain error.”) In order to establish plain error, Hilldale must demonstrate clear or

obvious error, which affected Hilldale’s substantial rights. See Abuan v. Level 3

Commc’ns, Inc., 353 F.3d 1158, 1173 (10th Cir. 2003). “We may only reverse in

an exceptional circumstance, where the error was patently erroneous and

prejudicial and where fundamental injustice would otherwise occur.” Id.

      Under § 1983, state-created danger is recognized as a basis for substantive

due process claims. See Vicente-Elias v. Mukasey, 532 F.3d 1086, 1095 (10th

Cir. 2008). State actors are liable under § 1983 only for their own actions except

where “a state actor affirmatively acts to create, or increases a plaintiff’s

                                         -27-
vulnerability to, or danger from private violence.” Robbins v. Oklahoma, 519

F.3d 1242, 1251 (10th Cir. 2008).

       To state a prima facie case, the plaintiff must show that (1) state
       actors created the danger or increased the plaintiff’s vulnerability to
       the danger in some way, (2) the plaintiff was a member of a limited
       and specifically definable group, (3) the defendants’ conduct put the
       plaintiff at substantial risk of serious, immediate, and proximate
       harm, (4) the risk was obvious or known, (5) the defendants acted
       recklessly in conscious disregard of that risk, and (6) the conduct,
       when viewed in total, shocks the conscience.

Id. Hilldale challenges the danger creation claim on a single front and argues that

a danger creation theory applies only when the harm is caused by a private action.

In the present case, Hilldale states that Giacomo was a state actor, citing Moore v.

Guthrie, 438 F.3d 1036 (10th Cir. 2006), which holds that the danger creation

theory does not apply when “the injury occurs due to the action of another state

actor.” Id. at 1042. 2

       In Moore, a police officer sued the city under § 1983 after he was shot with

a simulation bullet by another officer during a training exercise. 438 F.3d at

1038-39. This Court concluded that no danger creation claim could lie because

the plaintiff’s injury was the result of a bullet shot “by a fellow police officer and

not a private third party.” Id. at 1042. In that case there was clearly no “private


       2
         J.M. argues that Giacomo was not a state actor because his actions were
outside the scope of his employment. J.M. cites no authority for the proposition
that a person acting outside the scope of his employment as a public school
teacher is not a state actor for the purposes of evaluating a § 1983 danger creation
theory.

                                         -28-
violence” because the circumstances involved a sponsored training exercise and

another police officer. The present case stands in stark contrast to the facts in

Moore—there was “private” activity—an inappropriate relationship with a

student. See B.T. v. Davis, 557 F.Supp.2d 1262, 1281, n.4 (D. N.M. 2007)

(considering whether the defendant in that case was “more like a third party” than

the police officer in Moore). There is no parallel between the accident that

occurred during the state-sponsored training exercise and the intentional sexual

harassment that occurred at the public school. Considering the factual

distinctions between this case and Moore, as well as Hilldale’s failure to object to

the jury instruction, we can discern no “patently erroneous” error in allowing the

jury to consider the danger creation claim. Abuan, 353 F.3d at 1173.

C.    Inconsistent Verdicts

      Also based on plain error, Hilldale argues that the jury’s verdicts for

Hilldale on the state failure to report claim and against Hilldale on the Title IX

and § 1983 claims were irreconcilably inconsistent. Plain error analysis in this

context—where the complaining party failed to object to a general jury verdict

before the jury was released—is conducted under a different standard than in

other contexts. Bartee v. Michelin N. Am., Inc., 374 F.3d 906, 911. n. 2 (10th

Cir. 2004). Under these circumstances, this Court finds plain error “only when

verdicts are inconsistent on their face.” Id. at 911. “A verdict that resolves

separate and distinct causes of action in favor of both parties is not inconsistent

                                         -29-
on its face, [but] when several causes of action are identical and defended on the

same ground, a verdict for the plaintiff on one cause of action and for the

defendant on another is inconsistent.” Id. at 911-12 (internal quotation marks and

citation omitted).

      In considering the consistency of the verdicts, this Court examines the

relationship between the elements of the claims. See Oja v. Howmedica, Inc.,

111 F.3d 782, 791 (10th Cir. 1997) The state law failure to report claim consists

of the following elements: (1) Hilldale had reason to believe that a child under 18

was a victim of abuse; (2) Hilldale knowingly and willfully failed to report the

abuse to the Department of Human Services; (3) the failure to report the abuse

was negligent; and (4) Hilldale’s failure to report the abuse of J.M. directly

caused J.M.’s injuries. Aplt.App., Vol. I, at 121. The Title IX claim required

J.M. to establish that “(1) an appropriate person employed by the School District

had actual knowledge of, and (2) was deliberately indifferent to; (3) harassment

that was so severe, pervasive, and objectively offensive that it; (4) deprived the

victim of access to the educational benefits or opportunities provided by the

School District.” Aplt.App., Vol. I, at 116. Hilldale contends that the jury found

that Hilldale had “actual notice” as required by the federal Title IX and § 1983

claims but also concluded that Hilldale did not have a “reason to believe” that

J.M. was being abused as required for the state claim and that therefore, the

verdicts are inconsistent. Hilldale cites Oja for support.

                                         -30-
      In Oja, the jury found for the plaintiff on a negligent failure to warn claim

and for the defendant on negligence and strict liability claims. Id. at 785. This

Court concluded that the similar elements between the failure to warn claim and

the strict liability claim were essentially the only disputed elements at trial. Id. at

791. The Court explained that in order to find for the plaintiff on the failure to

warn claim, “the jury had to find that the [product] was defective at the time of

sale and caused her injuries.” Id. At the same time, in order to find for the

defendant on the strict liability claim, “the jury had to find that the PCA hip was

either not defective at the time of sale or did not cause her injuries.” Id. As a

result, the verdicts were facially inconsistent.

      There is no similar comparison here. Although the actual knowledge

element in the federal claims is similar to the reason to believe element in the

state claim, Hilldale does not contend that the knowledge component was

“essentially the only disputed element[] at trial.” Id. The jury could have

concluded J.M. did not establish that Hilldale’s failure to report the abuse to the

state department of human services directly caused J.M.’s injuries. Instead, a

reasonable jury could have concluded that Riddle’s failure to report to state

authorities did not result in J.M.’s loss, while at the same time determining that

Riddle’s failure to himself investigate the report did directly cause a portion of

J.M.’s injuries. The verdicts can be read to resolve “separate and distinct causes




                                          -31-
of action” and are therefore not inconsistent on their face. Bartee v, 374 F.3d at

911 (internal quotation marks and citation omitted).

D.    Duplicative Verdicts

      Also as a part of Hilldale’s motion for judgment as a matter of law was an

argument that the jury’s verdicts were duplicative. The district court ruled that

the jury’s awards on the two § 1983 claims were duplicative and reduced the

award against Hilldale by $150,000. On appeal, Hilldale maintains that the

separate damages awards for the two § 1983 claims, the Title IX claim, and the

state tort claim were duplicative of each other because they were alternate

theories for the same relief.

      “Whether an award is duplicative is a question of fact,” which this Court

reviews for clear error. N. Am. Specialty Ins. Co., 579 F.3d at 1113. “An error is

clear only if the court’s finding is without factual support in the record or if, after

reviewing all the evidence, we are left with a definite and firm conviction that a

mistake has been made.” Id. (internal quotation marks and citation omitted).

Where, as here, the jury is instructed not to award duplicative damages, and the

jury returns a total damage figure that is within the range of evidence, this Court

is “generally unwilling to disturb or second guess the jury’s verdict.” Id.

Nevertheless, “double recovery is precluded when alternative theories seeking the

same relief are pled and tried together.” Clappier v. Flynn, 605 F.2d 519, 530 (

10th Cir 1979). “If a federal claim and a state claim arise from the same

                                         -32-
operative facts, and seek identical relief, an award of damages under both theories

will constitute double recovery.” Mason v. Okla. Turnpike Authority, 115 F.3d

1442, 1459 (10th Cir. 1997).

      These arguments require this Court to evaluate the bases for J.M.’s Title IX

, § 1983, and state tort claims. The Title IX claim is based on the fact that

Hilldale failed to investigate Pembrook’s allegations. The § 1983 inaction claim

is based on Hilldale’s failure to implement a cohesive policy for investigating

sexual harassment claims. The state claims—negligent hiring, supervision, and

retention—are based on Hilldale’s failure to supervise and continued retention of

Giacomo after Pembrook alleged that he had an inappropriate relationship with a

student. The district court already determined that the danger creation verdict and

the inaction verdict were duplicative, and the three remaining claims were based

on different operative facts, different failures by Hilldale. In addition, the district

court found that the claims represent different injuries: the § 1983 causes of

action redressed the loss of personal security and bodily integrity, the Title IX

claim redressed the deprivation of access to educational opportunities, and the

state tort claim redressed J.M.’s right as a student to be safe from danger.

      Hilldale further contends that the only way to reconcile the double recovery

instruction with the amount awarded is to read the verdict to award J.M. a total of

$150,000. The double recovery instruction contained the following language:




                                          -33-
      You must not award damages more than once for the same injury.
      For example, if plaintiff prevails on two claims, and establishes a
      dollar amount for her injuries, you must not award her any additional
      damages on each claim. The plaintiff is only entitled to be made
      whole once, and may not recover more than she has lost. Of course,
      if different injuries are attributed to the separate claims, then you
      must compensate the plaintiff fully for all such damages.

Aplt.App., Vol. I, at 144. Hilldale argues that the only way to reconcile the jury’s

verdict with this instruction is to understand the verdict forms to convey the total

recovery at the bottom of each. This argument fails for two reasons. First, each

verdict form stated specifically that the jury found for the Plaintiff, on a

particular claim, and awarded a specific amount of damages for that claim. As an

example, the verdict form relating to J.M.’s inaction theory appears in the record

as follows:

            We, the jury find the issues in favor of the Plaintiff on her
      claim under 42 U.S.C., § 1983—Inaction Theory, and assess Plaintiff
      recovery in the amount of

      Compensatory Damages                            $ 150,000.

      or

      Nominal Damages                                 $         .

Aplt.App., Vol. I, at 155. Each claim corresponded to a similar verdict form. In

the instances where the jury found for Hilldale, it left both dollar amounts blank.

Considering the structure of the jury forms, we conclude that Hilldale’s suggested

analysis is unreasonable. In addition, Hilldale’s interpretation of the instruction

does not permit the jury to conclude that plaintiff had different injuries for more

                                          -34-
than one claim, as the instruction indicates is permissible and as the district court

ultimately found for three of J.M.’s claims.

      Thus, we are not persuaded by Hilldale’s attempt to read the jury’s verdict

as a single award of $150,000. Further, although Hilldale’s actions and J.M.’s

injuries are based on a single underlying occurrence—Giacomo’s sexual

harassment—the jury’s separate awards are supported by different conduct on the

part of Hilldale and by J.M.’s different injuries. Accordingly, there is no clear

error by the district court in awarding three separate awards for these separate

deprivations. See Berry v. City of Muskogee, Okla., 900 F.2d 1489, 1507 (10th

Cir. 1990) (noting that § 1983 damages are based on common law tort remedies,

which compensate a plaintiff for the injury caused by the defendant’s breach of

duty); see also Clappier, 605 F.2d at 529 (considering the interest protected, as

well as the relief afforded, by the arguably alternative claims).

E.    J.M.’s Cross Appeal

      In her cross appeal, J.M. argues that the district court improperly reduced

the jury’s verdict in its Amended Judgment. After considering Hilldale’s motion

for judgment as a matter of law, the district court reduced two of the damages

awards. Aplt.App., Vol. I, at 246, 250. First, the court determined that the two §

1983 claims were duplicative and reduced the verdict accordingly. Aplt.App.,

Vol. I, at 246, n. 2. Second, the district court reduced the damages on the state

negligence claim from the $150,000 awarded by the jury to the $125,000 that is

                                         -35-
permissible under the Oklahoma Governmental Tort Claims Act, 51 Okla. Stat.

Ann.§ 154(A)(2). Aplt.App., Vol. I, at 249, 250. As set forth earlier, this Court

reviews the district court’s finding that an award is duplicative for clear error. N.

Am. Specialty Ins. Co., 579 F.3d at 1113.

      J.M.’s theory on cross appeal is that because the jury was instructed to

avoid double recovery and because this Court presumes that juries follow

instructions, the only way to explain the award is that the jury intended to award a

total of $600,000. Hilldale maintains that it was the responsibility of the district

court to reduce the verdict because the two § 1983 claims arose from the same

injury. The district court agreed with Hilldale, concluding that, despite its

instruction stating that “[y]ou must not award damages more than once for the

same injury,” Aplt.App., Vol. I, at 144, the jury awarded damages for both § 1983

claims, which addressed the same injury: the right to personal security and bodily

integrity as protected by the substantive due process. See Aplt.App., Vol. I, at

247-48.

      J.M. cites Gentile v. County of Suffolk, 926 F.2d 142 (2nd Cir. 1991) and

Youren v. Tintic Sch. Dist., 343 F.3d 1296 (10th Cir. 2003) for support. In

Gentile, the plaintiffs provided substantial evidence that supported different

damages for their § 1983 claims and their state claims. Id., 926 F.2d at 153-54.

In addition, a jury poll demonstrated that the jury intended to award

“independent” damages for each claim. Id. at 154. J.M. has not articulated

                                         -36-
independent bases for the separate § 1983 actions—that either separate duties

were breached or separate injuries resulted. In Youren, this Court was persuaded

by the district court’s instruction to the jury prohibiting duplicative verdicts. In

addition, the plaintiff offered the Youren Court an explanation for the division of

the damages award between the school district and the school district’s agent,

sued in her official capacity. 343 F.3d at 1306. Apparently, the court permitted

an award against the agent separately in order to “publicly sanction” the agent for

violations of the Whistleblower Act. Id. There is no such explanation in the

present case.

      As stated earlier, J.M. contends that the jury intended to award $600,000

total and that any incompatibility between the awards should not result in a

reduction of the total amount, but rather a shifting so that the permissible awards

are simply increased to compensate for reduction of improper awards. We are not

persuaded. The jury specifically awarded J.M. $150,000 for a state law claim that

carried a statutory damages cap of $125,000. The district court reasonably

reduced the single award by $25,000—J.M. suggests that the $25,000 should

simply be imputed to another claim. There is no support for such a transfer of a

damages award, and we decline to do so.

      The district court read the verdicts as four individual $150,000 awards and

after determining that two of those $150,000 awards were based on identical

injuries, eliminated one $150,000 award. Review of the instructions and the

                                         -37-
verdict forms satisfies us that the district court’s order vacating one of the § 1983

awards demonstrates no clear error. Further, the district court’s reduction of the

state tort award to match the statutory damages cap is also not clear error—or any

error at all under 51 Okla. St. Ann. § 154(A)(2) (“The total liability of the state

and its political subdivisions on claims within the scope of The Governmental

Tort Claims Act, arising out of an accident or occurrence happening after the

effective date of this act, Section 151 et seq. of this title, shall not exceed . . . One

Hundred Twenty-five Thousand Dollars ($125,000.00) to any claimant for a claim

for any other loss arising out of a single act, accident, or occurrence.” (internal

footnote omitted)).

III.   Conclusion

       For the reasons stated above, Hilldale’s motions before this Court are

granted, and we AFFIRM the district court.

                                                  ENTERED FOR THE COURT,


                                                  M. Christina Armijo
                                                  District Judge Sitting by Designation




                                           -38-
