                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 12a0939n.06
                                                                                           FILED
                                           No. 11-5979
                                                                                      Aug 23, 2012
                            UNITED STATES COURT OF APPEALS                      LEONARD GREEN, Clerk
                                 FOR THE SIXTH CIRCUIT


SHAWNEE MATHIS, et al.,                                  )
                                                         )
       Plaintiffs-Appellees,                             )        ON APPEAL FROM THE
                                                         )        UNITED STATES DISTRICT
v.                                                       )        COURT FOR THE MIDDLE
                                                         )        DISTRICT OF TENNESSEE
WAYNE COUNTY BOARD OF EDUCATION,                         )
et al.,                                                  )                            OPINION
                                                         )
       Defendant-Appellant.                              )




BEFORE:        COLE and KETHLEDGE, Circuit Judges; THAPAR, District Judge.*


       COLE, Circuit Judge. In the fall of 2008, the Plaintiffs’ sons, John and James Doe, were

subjected to sexual harassment by their middle school basketball teammates. The harassment

spanned from arguably innocent locker room pranks to acts that appeared to be sexually violent in

nature. Based on these acts, the Plaintiffs filed suit, alleging student-on-student sexual harassment

in violation of Title IX. After a three-day jury trial, the Plaintiffs prevailed and were awarded

$100,000 each. The Defendant, Wayne County Board of Education (“WBOE”), seeks to set aside

this jury verdict. WBOE contends that the district court erred in denying its renewed motion for

judgment as a matter of law, following the jury verdict. We AFFIRM.



       *
       The Honorable Amul R. Thapar, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
No. 11-5979
Mathis v. Wayne County Board of Education, et al.

                                                 I.

       In the fall of 2008, John and James Doe—seventh graders at Waynesboro Middle School

(“WMS”)—made the boys basketball team. At the beginning and end of their basketball practices,

the team members would use the gym locker room to get dressed in their workout clothing and

prepare for practice. From the beginning of the season, the boys would roughhouse in the locker

room, which often involved the eighth grade boys ganging up on the seventh graders. At the start

of the 2008 season, a number of eighth graders subjected John and James, as well as other team

members, to a game of “lights out,” which involved turning off all the lights in the locker room, and

then humping and gyrating on the seventh graders. Mathis v. Wayne Cnty. Bd. of Educ., No. 1:09-

0034, 2011 WL 3320966, at *2 (M.D. Tenn. Aug. 2, 2011). The eighth graders also played a game

called the “blind-folded sit-up.” The prank entailed convincing James that it was impossible to do

a sit-up blind-folded, so that when James came to the end of the sit-up, one of the eight graders had

placed his naked buttocks in front of James, which he hit with his blind-folded face. Id.

       On October 22 or 24, the pranks grew more aggressive when a number of eighth graders on

the team grabbed John, forced him to the ground, pulled his pants down and anally penetrated him

with a marker. Id. at *3. John did not initially report this incident to his parents or the school

because he felt threatened by the eighth graders. On October 26, David Sisk, the coach of the

basketball team, learned of the “marker incident” from his step-daughter, who was also a student at

WMS and had heard rumors of the incident at school. Id. Sisk spent the next few days trying to

determine the accuracy of the report, but he did not report the allegations to either Principal Ryan

Keaton, John’s parents, or anyone else. Id.

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No. 11-5979
Mathis v. Wayne County Board of Education, et al.

       After learning of the marker incident from her son on October 29, Plaintiff Shanwee Mathis

met with Keaton to report the incident. Id. Keaton took the report, but informed Mathis that he

could not take any formal disciplinary actions until the Director of Schools, Wanda Johnston,

returned from out of town. Id. Keaton did cancel basketball practice for October 30 and 31. When

Johnston returned on October 31, he met with Keaton, Mathis, and other school officials and

determined that there was sufficient evidence supporting John’s allegation to justify suspending the

perpetrators from school for ten days. Id. The suspension began on November 3, and placed the

suspended eighth graders in an alternative school and suspended them from the basketball team. Id.

       On November 4, after learning from her son James of the blind-folded sit-up and lights out

incidents, Tammy McGuire, along with another parent, met with Keaton to discuss their concerns

of locker room misconduct. Id. According to McGuire, Keaton was not overly concerned about

these incidents and viewed them as just a bad prank. Although Keaton did punish this conduct

months later through a verbal reprimand, Keaton made no indication to McGuire that he would

investigate this conduct and surprised McGuire with his apparent lack of concern. Id.

       From November 4 through November 7, John and James were harassed at school, including

students repeatedly making comments about John’s sexuality, after learning about the marker

incident. Id. The harassment escalated to the point where McGuire removed James from WMS on

November 7, concerned that her son would not be safe, in light of the perceived lack of action from

the school district. Id. at 4. On November 6, McGuire and two other parents met with Johnston and

the Wayne County Schools’ “Complaint Manager,” to discuss the locker room incidents. Id.



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No. 11-5979
Mathis v. Wayne County Board of Education, et al.

McGuire described the manager’s attitude as “very calloused,” and, there again was no indication

that the district was prepared to take prompt action. Id.

       Starting on November 6, the school did take some action, seeking to prevent locker room

misconduct. Id. Namely, the school required seventh and eight graders to use the locker room at

different times, required the door to the locker room to be kept open while in use, required an extra

coach to monitor the boys while in the locker room, required Sisk to monitor the team more closely,

offered further instruction on bullying, and provided counseling. Id. The next day, the school issued

Sisk a written reprimand for failing to report the marker incident. Id.

       On November 17, the Disciplinary Hearing Authority (“DHA”)—a committee comprised of

high ranking school officials—met to discuss the marker incident. Id. Although the school officials

were aware of the lights out and blind-folded sit-up incidents, Johnston did not raise the issues

during the DHA meeting. Id. Keaton contends that those incidents were discussed at the DHA

meeting, however there is no record of this discussion in the meeting minutes. Id. The DHA voted

to add one day of suspension to the marker incident perpetrators and to reinstate them to the

basketball team on January 1, 2009. Id. In doing so, the DHA rejected a proposal to suspend those

students from the team for the remainder of the season. Id. The suspended students appealed the

decision to the WBOE, which changed the reinstatement date to December 1, 2008. Id. After this

decision, Mathis removed John from WMS. Id.

       On July 14, 2009, Mathis and McGuire filed suit on behalf of their sons, alleging that their

sons were subjected to student-on-student sexual harassment. Id. at *1. Mathis and McGuire filed

suit against a number of defendants, and raising a variety of claims; however, when the case went

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No. 11-5979
Mathis v. Wayne County Board of Education, et al.

to trial, the only remaining claim was a Title IX claim against WBOE. Id. At the close of the

Plaintiffs’ case-in-chief, WBOE moved for judgment as a matter of law under Federal Rule of Civil

Procedure 50(a), which was denied. WBOE renewed its motion at the close of all evidence, but the

motion was again denied. At the conclusion of the trial, the jury found for Mathis and McGuire and

awarded each $100,000 in damages. WBOE then renewed its motion for judgment as a matter of

law under Rule 50(b) or, in the alternative, a motion for a new trial. The district court denied both

motions and WBOE now appeals.

                                                  II.

        We review a district court’s denial of a renewed motion for judgment as a matter of law de

novo. Barnes v. City of Cincinnati, 401 F.3d 729, 736 (6th Cir. 2005). “Judgment as a matter of law

may only be granted if, when viewing the evidence in the light most favorable to the non-moving

party, giving the party the benefit of all reasonable inferences, there is no genuine issue of material

fact for a jury, and reasonable minds could come to but one conclusion in favor of the moving party.

Id. To be granted relief under this high standard, therefore, WBOE must show that the evidence in

favor of its position was so overwhelming that reasonable jurors could not have found for Mathis

and McGuire. See id.

        A claim of student-on-student sexual harassment under Title IX requires the plaintiff to

establish the following elements against a covered entity: that “(1) the sexual harassment was so

severe, pervasive, and objectively offensive that it could be said to deprive the plaintiff of access to

the educational opportunities or benefits provided by the school; (2) the funding recipient had actual

knowledge of the sexual harassment, and (3) the funding recipient was deliberately indifferent to the

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No. 11-5979
Mathis v. Wayne County Board of Education, et al.

harassment.” Vance v. Spencer Cnty. Pub. Sch. Dist., 231 F.3d 253, 258-59 (6th Cir. 2000).

WBOE’s renewed motion for judgment as a matter of law alleged that Mathis and McGuire failed

to produce “sufficient evidence of deliberate indifference following actual notice.” Mathis, 2011 WL

3320966, at *6. A showing of deliberate indifference requires the plaintiff to prove that “the

recipient’s response to the harassment . . . is clearly unreasonable in light of the known

circumstances.” Patterson v. Hudson Area Schs., 551 F.3d 428, 446 (6th Cir. 2009) (internal

quotation marks and citations omitted). WBOE alleges that Mathis and McGuire failed to present

evidence at trial that any sexual harassment occurred after WBOE had actual notice and, because the

harassment stopped, the Plaintiffs could not demonstrate the WBOE’s response was clearly

unreasonable. Mathis, 2011 WL 3320966, at *6.

       As the district court correctly noted, there was ample evidence before the jury from which

reasonable jurors could have concluded that WBOE’s response constituted deliberate indifference.

Id. at *7-8. Additionally, the jury could have reasonably viewed the evidence of the marker incident

not as just horseplay gone awry, but rather as a serious incident of sexual assault, which requires a

punishment more severe than an eleven-day suspension from WMS and a month-long suspension

from the basketball team. Finally, as the district court noted, “the jury could have reasonably

concluded that any decision that returned the alleged perpetrators to the basketball team was clearly

unreasonable, given that John Doe would be subjected to interacting with these boys in close quarters

on a daily basis . . . .” Id. at *8. Given the evidence at trial, therefore, the jury’s conclusion that

WBOE acted with deliberate indifference could reasonably have been reached.



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No. 11-5979
Mathis v. Wayne County Board of Education, et al.

        As for James, the testimony at trial suggested that WBOE took little to no immediate action

to protect James from the two forms of harassment he endured—the blind-folded sit-up and lights

out incidents. They jury was aware that WBOE did not conduct any substantive investigation of

either incident, nor did it promptly punish the behavior. The testimony also indicated that the school

officials concentrated their investigation on the marker incident, not the continuing behavior that

affected James. Furthermore, the jury was cognizant of the fact that Sisk only received a light

reprimand for his failure to report the marker incident, and the perpetrators of the blind-folded sit-up

and lights out incidents received only a verbal reprimand. From this evidence, the jury could have

reasonably concluded that WBOE’s remedial steps were insufficient to provide James a safe

environment, as further evidenced by his mother’s decision to remove him from WMS. Because the

jury may have reasonably concluded that WBOE’s response was too little too late and was too

delayed to help James, WBOE’s renewed motion for judgment as a matter of law cannot prevail.

                                                  III.

        The district court’s denial of WBOE’s renewed motion for judgment as a matter of law is

AFFIRMED.




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