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Doe v. Madison Metropolitan School District

United States District Court, W.D. Wisconsin

February 9, 2017

JANE DOE NO. 55, by and through JANE DOE'S MOTHER and JANE DOE'S FATHER, Plaintiff,


          BARBARA B. CRABB District Judge.

         Plaintiff Jane Doe No. 55 sued defendant Madison Metropolitan School District under Title IX of the Education Amendments of 1972 and state law for failing to prevent or stop a district employee from sexually abusing her while she was a student in the district. In an order dated November 16, 2016, dkt. #92, I considered whether plaintiff had adduced sufficient evidence to allow a reasonable jury to find in her favor under Title IX, which required her to show that defendant had “actual notice” that one of its employees, Willie Collins, was sexually abusing or harassing plaintiff at school. I concluded that she had not. It was undisputed that Deborah Ptak (the school principal) and other school staff were unaware of abuse that allegedly occurred during plaintiff's eighth grade year. Further, other interactions between plaintiff and Collins that Ptak observed or otherwise knew about while plaintiff was in seventh grade, such as frequent hugs between the two, did not provide sufficient notice that harassment was occurring, even if some of the interactions may have suggested that the two had an unhealthy attachment to each other. Because plaintiff's state law claim required a similar showing to that required under Title IX, I granted defendant's motion for summary judgment as to both claims. The clerk of court entered judgment the same day. Dkt. #93.

         Now plaintiff has filed a motion for reconsideration under Fed.R.Civ.P. 59 with respect to her Title IX claim, dkt. #96, along with a request for oral argument, dkt. #95. I am denying the request for oral argument because plaintiff does not identify any facts or law she was unable to present to the court in her written submissions. I am denying the motion for reconsideration because I am not persuaded that I erred in granting defendant's motion for summary judgment.


         Plaintiff's motion for reconsideration is an attempt at a summary judgment “do over.” Her 27-page brief (four pages longer than her summary judgment brief) does not focus on particular errors in the summary judgment opinion but rather relitigates nearly every issue related to the general question whether defendant had notice of the abuse. Although plaintiff makes a more forceful argument in her motion for reconsideration than she did in her original brief, she has not shown that she is entitled to a trial on her Title IX claim.

         Plaintiff raises many issues in her motion, some of which were not included in her summary judgment brief. I address below those issues that merit additional discussion.

         A. Standard for Determining Sex Discrimination under Title IX

         First, plaintiff challenges the standard I used for determining whether defendant had notice of conduct that qualifies as sex “discrimination” under Title IX, an issue that plaintiff ignored in her summary judgment brief. Even if I assume that plaintiff did not forfeit this issue, she has not identified any reason for changing the standard I applied.

         Under Title IX, "no person . . . shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." 20 U.S.C. § 1681(a). In the summary judgment opinion, I concluded that “[p]rohibited sex discrimination under Title IX includes sexual harassment and sexual abuse, so long as the misconduct was so pervasive or severe that it altered the conditions of plaintiff's education, ” dkt. #92 at 9, a standard that came from Mary M. v. North Lawrence Comunity School Corp., 131 F.3d 1220, 1228 (7th Cir. 1997). I also cited Davis Next Friend LaShonda D. v. Monroe County Board of Education, 526 U.S. 629, 650 (1999) (conduct is not “discrimination” under Title IX unless it “deprive[s] the victims of access to the educational opportunities or benefits provided by the school”). This standard is consistent with the language of the statute itself, which prohibits sex discrimination in the context of “participation” and “benefits” of an “education program or activity.” It is also consistent with Title VII of the Civil Rights Act, which prohibits sexual harassment if it is “so severe or pervasive as to alter the conditions of . . . employment.” EEOC v. Management Hospitality of Racine, Inc., 666 F.3d 422, 432 (7th Cir. 2012).

         Plaintiff argues that the quoted language in Davis is limited to claims of student-on-student harassment and does not apply to claims of employee-on-student harassment, but this argument has multiple problems. As an initial matter, plaintiff does not identify what she believes the standard should be, so even if I agreed with her, I would have nothing to replace the standard I applied.

         More important, plaintiff has not pointed to any language in Davis suggesting that I applied the wrong standard. It is true that the facts in Davis involved harassment by another student rather than harassment by an employee and that the holding of the Court was limited to that context. However, the Court derived its standard from the language of Title IX, which does not define discrimination differently depending on the identity of harasser. Plaintiff provides no statutory basis for defining discrimination differently in different contexts. Under Title VII, discrimination in the harassment context is defined the same way regardless whether the plaintiff was harassed by a coworker or supervisor. E.g., Zayas v. Rockford Memorial Hospital, 740 F.3d 1154, 1159 (7th Cir. 2014); Cerros v. Steel Techs., Inc., 288 F.3d 1040, 1045 (7th Cir. 2002); Mason v. South Illinois University at Carbondale, 233 F.3d 1036, 1044-45 (7th Cir. 2000). (The standard for employer liability is different for supervisors and coworkers, Vance v. Ball State University, 133 S.Ct. 2434, 2439, 186 L.Ed.2d 565 (2013), but that is a separate issue.) Plaintiff identifies no reason why Title IX would be interpreted differently.

         Even if I agreed with plaintiff that some other standard should apply, I would be bound by Mary M., 131 F.3d 1220, which involved an employee's abuse of a student. Although the Court in Davis did not hold that the standard it articulated should apply to harassment by school employees, the Court did not overrule Mary M., either expressly or by implication. Rather, the Court simply did not address the question, so Davis had no effect on Mary M.'s precedential value. Because plaintiff identifies no appellate decision from this circuit overruling Mary M., it is still the law.

         In her reply brief, plaintiff suggests that Mary M.'s standard for discrimination is inconsistent with Gebser v. Lago Vista Independent School District, 524 U.S. 274, 277 (1998), but that argument has no merit. In Gebser, the Supreme Court held that a defendant “intentionally violates Title IX, and is subject to a private damages action, where the recipient is deliberately indifferent to known acts of teacher-student discrimination.” Davis, 526 U.S. at 643 (citing Gebser). The Court did not consider what conduct qualifies as discrimination, so Gebser has no bearing on that question.

         That being said, I do not mean to suggest that the status of the harasser is irrelevant to the question whether a student was subjected to severe or pervasive conduct that altered the terms of her education. In light of the differences in age and authority, a teacher's or other employee's actions toward a student are more likely to alter that student's educational experience than if ...

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