                                 United States Court of Appeals,

                                         Eleventh Circuit

                                           No. 96-9235.

    Robert Manuel ROGERS, by his natural parent and next friend, Patricia Anne LACKEY,
Plaintiff-Appellant,

                                                 v.

  MUSCOGEE COUNTY SCHOOL DISTRICT; Herman Larry Carr, Defendants-Appellees.

                                          Jan. 20, 1999.

Appeal from the United States District Court for the Middle District of Georgia. (No. 94-cv-70
(JRE), J. Robert Elliott, Judge.

Before TJOFLAT, BIRCH and MARCUS, Circuit Judges.

       TJOFLAT, Circuit Judge:

       Thirteen-year-old Robbie Rogers was sexually molested at school by his music teacher.

Robbie then brought this suit against the Muscogee County School District ("Muscogee"), alleging

that Muscogee was vicariously liable for this abuse under Title IX of the Education Amendments

of 1972, Pub.L. No. 92-318, 86 Stat. 235, 373 (1972) (codified as amended at 20 U.S.C. § 1681

(1994)) ("Title IX") and under 42 U.S.C. § 1983.1 The jury returned a verdict in favor of Muscogee.

Robbie and his mother appeal, claiming that the district court erred by: (1) denying their motion to

compel discovery of certain student records before trial, (2) barring certain testimony of other

witnesses at trial, and (3) improperly excluding a last-minute witness who was not listed in the

pretrial order. We affirm the district court's judgment for the reasons set forth below.

                                                 I.

                                                A.


   1
    Patricia Lackey, Robbie's mother and next friend, filed this suit on Robbie's behalf.
       In 1993, Robbie was a student at Richards Middle School, where he attended a boys chorus

class taught by Herman Larry Carr. Carr had been teaching at the school since 1982, and he was

both well-respected by other teachers and well-liked by the students. Carr and Robbie shared a

particularly strong rapport; Carr had shown special interest in Robbie's music instruction, and

Robbie thought of Carr as his "idol." Consequently, when Carr asked Robbie to come to school on

a student vacation day, March 12, 1993, to assist with some work, Robbie readily agreed.

       While the two were alone in Carr's office on March 12, Carr molested Robbie; he pulled

Robbie down onto his knee and held Robbie against his chest. Carr then touched Robbie's groin

with his hand, and moved Robbie's hand onto Carr's own groin. Moments later there was a noise

in the adjoining room, and Carr threw Robbie off his lap.

       Robbie did not immediately tell anyone about the incident. Around Friday, April 23,

however, he told both his girlfriend and Mrs. Becker, the mother of another friend, about the attack.2

Then on Monday, April 26, accompanied by his girlfriend, Robbie explained to the school counselor

what Carr had done. The school counselor immediately reported the incident to the principal,

William Arrington. The next morning, Arrington confronted Carr with Robbie's claim and when

Carr did not deny the charges, Arrington suspended him from teaching classes. Later that same day,

Carr directly admitted to the Muscogee superintendent that he had molested Robbie. The

superintendent gave Carr the option of resigning or facing termination, and on May 4 Carr tendered

his resignation.

       Meanwhile, the word had spread around the school that Robbie was responsible for Carr's

suspension. Some students speculated about what had happened, and frequently told Robbie that

they believed he was lying. Arrington did not inform the students or their parents that Carr had


   2
    There is no evidence in the record that Mrs. Becker informed anyone of Carr's misconduct.
confessed to the attack.

       Carr was arrested for child molestation on May 19. The arrest, including the fact that Robbie

was Carr's accuser, received considerable media attention. On May 20, Robbie left the school, and

on May 29, he and his mother moved from Georgia to Alabama.

                                                 B.

       Appellants filed this suit on July 17, 1994. The complaint alleged that Carr's sexual

harassment interfered with Robbie's school activities and was sufficiently severe and pervasive to

constitute a hostile school environment in violation of Title IX.3 The complaint asserted that

Muscogee was liable under Title IX because it knew or should have known that Carr had molested

boys in the past, and therefore constituted a danger to the children entrusted to his care.4 Despite

knowledge of Carr's proclivity to molest boys, the complaint asserted, Muscogee failed to take

action to protect Robbie.

       The complaint also alleged that Carr's sexual contact violated Robbie's "constitutional right

to be free from intrusion into his body and the right to be free from the infliction of unnecessary

pain." Because Carr engaged in this sexual contact while acting under color of state law, Muscogee

was liable under 42 U.S.C. § 1983.5


   3
    Title IX states: "No person in the United States shall, on the basis of sex, be excluded from
participation in, be denied the benefits of, or be subjected to discrimination under any education
program or activity receiving Federal financial assistance...." 20 U.S.C. § 1681(a). There is no
dispute that Muscogee was a recipient of federal funds when Carr's misconduct occurred, and
was therefore subject to Title IX.
   4
    Although Carr was originally named as a defendant along with Muscogee, appellants settled
their claim against Carr after the first day of trial.
   5
    42 U.S.C. § 1983 provides:

               Every person who, under color of any statute, ordinance, regulation, custom, or
               usage, of any State ... subjects, or causes to be subjected, any citizen of the United
       In defense to appellants' claims, Muscogee responded that it did not know, and could not

reasonably have known, that Carr posed a danger to children. Consequently, it was not liable for

Carr's misconduct.

       In order to prove that Muscogee had prior knowledge of Carr's propensity to molest children,

appellants decided to contact each of Carr's former students and ask whether Carr had molested

them. To accomplish this goal, appellants served on Muscogee a set of discovery requests, including

the following interrogatories:

       2. Identify by title each document, including, but not limited to, class rolls, which lists the
       names of students who were enrolled in each class [taught by Carr]. State the location of
       each such document, each form in which it exists (i.e., paper record, computer file, etc.), and
       the name of its custodian.

       3. Identify by title each document, including, but not limited to, student directories,
       containing "directory information" such as name, address, and/or phone number, which lists
       the names of students who were enrolled in each class [taught by Carr]. State the location
       of each such document, each form in which it exists (i.e., paper record, computer file, etc.),
       and the name of its custodian.

Appellants also served on Muscogee a request to produce all documents identified in response to

these two interrogatories.

       Muscogee responded to Interrogatory 2 and the corresponding request for document

production by identifying and producing grade books that listed the name of each student taught by

Carr. In response to Interrogatory 3 and its corresponding document request, however, Muscogee

objected that the discovery request was "overly broad, burdensome, and is not reasonably calculated

to lead to the discovery of admissible evidence." Subject to that objection, Muscogee identified

rolodex cards for each student taught by Carr between 1988 and 1993. Muscogee refused, however,




               States ... to the deprivation of any rights, privileges, or immunities secured by the
               Constitution and laws, shall be liable to the party injured in an action at law, suit
               in equity, or other proper proceeding for redress.
to produce the rolodex cards.6 Appellants moved the district court to compel production of the cards

but the court denied the motion, concluding that the discovery request was "overly broad."

        The case went to trial before a jury on September 23, 1996. On the second day of trial, in

the absence of the jury, appellants proffered the testimony of several students and parents that they

had publicly supported Carr after he resigned, and that they had believed that Robbie was lying

about the molestation. Appellants argued that this testimony bolstered their claim that Muscogee's

failure to announce that Carr had admitted to the molestation "poisoned [the] community

atmosphere" against Robbie because it "allowed this belief to fester in the community that Mr. Carr

was innocent...." According to appellants, this poisoned community atmosphere was one element

of the hostile school environment that was caused by Carr's abuse and that drove Robbie out of

Richards Middle School and eventually out of Georgia. The district court excluded appellants'

proffer as irrelevant.

        On the third day of trial, after appellants had rested their case and Muscogee had presented

most of its defense—four of its six witnesses (including Arrington)—appellants moved the court for

leave to reopen their case in order to call a witness whom they had not listed in the pretrial order.

This witness, Daniel Lance Jordan, had appeared at the courthouse that morning, after hearing about

the case in the media. Jordan had been a student in Carr's class in 1984, and, according to Jordan,

had been molested by Carr approximately fifty times. Jordan claimed that he repeatedly told

Arrington about this sexual abuse.

        Muscogee opposed appellants' motion, arguing that allowing Jordan to testify without first

giving it an opportunity to depose him and conduct whatever investigation might be required to rebut



   6
   Muscogee refused to produce the rolodex cards even after Robbie's counsel offered to hire a
copy service to photocopy the cards, or alternatively, to pay Muscogee to make the photocopies.
his testimony would be highly prejudicial. The district court agreed, and therefore denied appellant's

motion.

       After Muscogee rested its case, appellants attempted to call Jordan to the stand to rebut

Arrington's testimony. Arrington had testified (during Muscogee's case) that he "[a]bsolutely [did]

not" have prior notice that "Carr had previously engaged in any behavior similar to what Robbie was

saying was done...." Muscogee objected, reiterating the argument it made in opposition to

appellants' motion for leave to reopen their case. The court sustained their objection.

       Appellants presented no rebuttal, and the evidence was closed. Following counsels'

summations and the court's instructions, the jury returned a verdict for Muscogee.

                                                 C.

       Appellants raise three claims on appeal. First, appellants contend that the district court

abused its discretion by denying their motion to compel production of the student rolodex cards.

According to appellants, identifying other victims was crucial in order to prove that Muscogee had

prior notice of Carr's propensity to molest children. Second, appellants contend that the court

improperly barred students and parents from testifying that they had believed Robbie was lying.

Appellants argue that this testimony was relevant to show that Carr's abuse created a hostile school

environment. Third, appellants contend that the court abused its discretion when it barred Jordan

from testifying. According to appellants, the court should have allowed Jordan to testify because

his testimony was particularly important, and because appellants could not have discovered his

identity before he arrived at the courthouse.

                                                 II.

          Appellants first challenge the court's denial of their motion to compel production of the

student rolodex cards. Appellants had requested that Muscogee produce student directories and
other documents containing the addresses and phone numbers of Carr's former students.7 Although

Muscogee had identified student rolodex cards in response to this document request, the court

upheld Muscogee's objection to this request as being overly broad. We review a court's refusal to

compel discovery under an abuse of discretion standard. See Borden, Inc. v. Florida E. Coast Ry.

Co., 772 F.2d 750, 756-57 (11th Cir.1985). We find no such abuse here.

        Appellants argue that they were required to prove that Muscogee knew or should have

known that Carr posed a danger to his students in order for their claim against Muscogee to succeed.

Consequently, it was vital for appellants to find other students who were molested by Carr and ask

whether they had reported Carr's sexual abuse to Muscogee officials. Because student directories

that listed the address and phone number of former students would have helped appellants find these

potential witnesses, appellants contend that the document request for student directories was

reasonably calculated to lead to admissible evidence.

       Furthermore, appellants assert that they needed student directories (such as the rolodex

cards) to find Carr's former students. Although Muscogee produced grade books that included the

names of Carr's students, appellants argue that they could not locate most of Carr's former students

using these grade books alone. The grade books listed students by the names that they used when

they attended Richards Middle School. Many of those students, however, used different names by

the time the case went to trial.8 Consequently, appellants argue, they successfully contacted only

ten percent of Carr's former students based on the names listed in the grade books.

       We conclude, however, that the district court did not abuse its discretion by refusing to



   7
   Appellants did not seek the students' current addresses and phone numbers, only the
addresses and phone numbers existing at the time of the students' enrollment in Carr's class.
   8
    For example, Daniel Lance Jordan was listed merely as "Lance Jordan" in the grade books.
compel production of the student rolodex cards, because the requested discovery was overly broad.

Appellants' purpose in requesting this discovery was to learn the identity of students who had

complained to Muscogee that Carr sexually abused them. Although appellants requested the

addresses and phone numbers of hundreds of students in order to gain this information, there was

a much narrower and less burdensome manner of discovery available: appellants could have asked,

by interrogatory, for the names (as well as the addresses and phone numbers) of all students who

complained that Carr sexually abused them. Only if Muscogee balked at this request would

appellants have been justified in requesting student directory information for all of Carr's former

students. See Sanchez v. City of Santa Ana, 936 F.2d 1027, 1034 (9th Cir.1990) (concluding that

district court did not abuse discretion by denying appellants' request for all of defendant's

confidential personnel files, because "focused discovery could have been employed" in order to

discover the relevant information).

       Furthermore, we note that appellants never informed the district court that they were able

to locate only ten percent of Carr's former students using the grade books. In their motion to compel

discovery of the rolodex cards, appellants argued that the rolodex cards were discoverable because

they would lead to admissible evidence, but they did not argue that the cards were necessary to find

that evidence. We cannot assume that the district court would have turned a deaf ear to that

argument, had appellants presented it to the court. Consequently, we affirm the district court's denial

of appellants' motion to compel discovery of the student rolodex cards.

                                                 III.

         Second, appellants claim that the district court abused its discretion by excluding as

irrelevant the proffered testimony of students and parents who had publicly supported Carr after he
resigned.9 These students and parents had written letters to law enforcement agencies, the grand jury

(while considering whether to indict Carr for child molestation), and prosecutors, among others,

stating that they believed Robbie was lying about the molestation. Although the students and

parents had written these letters after Robbie left Richards Middle School, this testimony was

relevant, appellants argue, because their opinion of Carr's guilt was "telling of the attitude which

existed while Robbie was there that forced Robbie to leave school." The proffered testimony

therefore supported the claim that Muscogee's failure to announce that Carr had confessed "poisoned

[the] community atmosphere" against Robbie. According to appellants, this atmosphere was part

of the hostile environment that was caused by Carr's abuse.

        We find no merit in appellants' assertion that exclusion of this testimony constituted such

an abuse. We assume arguendo that Muscogee could be held liable for creating a hostile

environment based on the abusive comments of students and parents that were actually conveyed

to Robbie while he attended Richards. Appellants, however, did not contend that these students and

parents conveyed their opinions to Robbie, or that they voiced their opinions before he left Richards.

Rather, whatever they had to say in letters to the grand jury, prosecutors, or law enforcement officers

was said after Robbie left the school. Their comments, therefore, could not have created a hostile

school environment. Consequently, the proffered opinions of parents and students were wholly

irrelevant, and were rightly excluded by the district court.10


   9
    Abuse of discretion is the proper standard when reviewing a district court's decision to
exclude evidence as irrelevant under Federal Rule of Evidence 401. See United States v. Tapia,
59 F.3d 1137, 1142 (11th Cir.1995). Federal Rule of Evidence 401 states: " "Relevant evidence'
means evidence having any tendency to make the existence of any fact that is of consequence to
the determination of the action more probable or less probable than it would be without the
evidence."
   10
     We also note that Robbie himself spread the word that he was responsible for Carr's
resignation. The record indicates that Robbie told at least three other people besides the school
                                                  IV.

        Third, appellants claim that the district court improperly barred Daniel Lance Jordan from

testifying. A district court's decision to exclude a witness not listed on the pretrial order is

reviewable only for abuse of discretion. See Fabrica Italiana Lavorazione Materie Organiche S.A.S.

v. Kaiser Aluminum & Chem. Corp., 684 F.2d 776, 780 (11th Cir.1982). We have previously stated

that an appellate court that is reviewing the decision to exclude a witness should consider: (1) the

importance of the testimony, (2) the reason for the failure to disclose the witness earlier, and (3) the

prejudice to the opposing party if the witness had been allowed to testify. See id.

        Appellants assert that the court should have allowed Jordan to testify because his testimony

was of crucial importance. If Jordan was allowed to testify, he would have stated that Carr molested

him approximately fifty times, and that he repeatedly told Arrington about the abuse. Consequently,

Jordan's testimony would have refuted Muscogee's assertion that its officials did not have prior

notice of Carr's propensity to molest children. Appellants argue that the importance of Jordan's

testimony outweighed any prejudice that would have resulted to Muscogee because Jordan was not

listed on the pretrial order.

        Furthermore, appellants contend that Jordan should not have been excluded because

appellants had a good excuse for failing to discover his identity before he appeared on the third day

of trial: at the time of trial, Jordan went by a different name from that which he used as a student

at Richards Middle School. Although Jordan used his middle name while attending Richards, and

his name thus appeared in the grade books as "Lance Jordan," at the time of the trial he instead was


guidance counselor what Carr had done. Robbie told his girlfriend and brought her with him to
see the school counselor; Robbie told Mrs. Becker (the mother of another friend); and Robbie
announced to another teacher at the school that Carr was leaving the school because he had
accused him of sexual abuse. Consequently, Robbie could hardly argue that Muscogee should
be held liable for failing to quell rumors that he helped create.
using his first name "Daniel." Consequently, appellants failed to locate Jordan from the grade books

produced by Muscogee.11

        We conclude, however, that the court did not abuse its discretion in excluding Jordan's

testimony. It would have been extremely prejudicial to Muscogee to allow Jordan to testify. If

Muscogee had received notice before the trial that Jordan would testify, Muscogee could have

structured its defense to counter what Jordan had to say. By the time Jordan was discovered,

however, Muscogee had already presented most of its defense to the jury. Had Jordan been allowed

to testify in the middle of Muscogee's presentation of its case, it would have disrupted the flow of

Muscogee's defense, and forced Muscogee to scramble at the last minute to counter his testimony.

        Appellants had several options available that would have minimized the prejudice to

Muscogee. First, after appellants discovered Jordan they could have requested that the court grant

a continuance. This option would have allowed Muscogee the opportunity to depose Jordan,

investigate Jordan's story, prepare cross-examination, and find witnesses to rebut his testimony. A

continuance, in short, would have provided Muscogee the opportunity to counter Jordan's testimony

in some meaningful way. Second, appellants could have requested a mistrial. This option would

have allowed both parties to investigate Jordan's claims and reargue their case from the beginning,

taking Jordan's testimony into account.

        Appellants, however, eschewed both of these less prejudicial alternatives. Instead, they

presented the judge with a narrow choice: allow Jordan to testify immediately—and thus deny

Muscogee the opportunity to depose him and prepare cross-examination—or exclude his testimony



   11
    Appellants would not have discovered Jordan earlier even if Muscogee had produced the
student rolodex cards as appellants requested. The rolodex cards only included the addresses
and phone numbers of students who attended the school after 1988. Jordan, however, was a
student in Carr's class in 1984.
entirely.12 In light of the extreme prejudice to Muscogee if Jordan were allowed to testify, as well

as appellants' failure to move for a continuance or request a mistrial in an effort to ameliorate the

prejudice to Muscogee, we conclude that the district court did not abuse its discretion in barring

Jordan's testimony.13

                                                 V.

        For the forgoing reasons, the district court's judgment is AFFIRMED.




   12
    Because it was appellants who sought Jordan's testimony, the obligation to request a
continuance or a mistrial fell on appellants, not Muscogee.
   13
     Appellants also present a fourth challenge to the district court's judgment: that the court
improperly instructed the jury that Muscogee was liable for Carr's sexual misconduct only if
Muscogee "knew or should have known" of Carr's propensity to molest children. Appellants
contend that the jury should instead have been instructed that Muscogee was strictly liable for
Carr's abuse. The United States Supreme Court has recently addressed this issue and concluded
that a school district is liable under Title IX for the sexual harassment of a student by a teacher
only if the school district actually knew, and was deliberately indifferent to, the teacher's abuse.
See Gebser v. Lago Vista Indep. Sch. Dist., --- U.S. ----, 118 S.Ct. 1989, 1993, 141 L.Ed.2d 277
(1998). Consequently, although the district court incorrectly instructed the jury regarding
Muscogee's standard of liability, the instruction given by the court was more favorable to
appellants than the correct instruction would have been.
