SANCHES v. CARROLLTON-FARMERS BRANCH INDEPENDENTNo. 10-10325.
647 F.3d 156 (2011)
Samantha SANCHES, Plaintiff-Appellant,
CARROLLTON-FARMERS BRANCH INDEPENDENT SCHOOL DISTRICT, Defendant-Appellee.
CARROLLTON-FARMERS BRANCH INDEPENDENT SCHOOL DISTRICT, Defendant-Appellee.
United States Court of Appeals, Fifth Circuit.
July 13, 2011.
Harold Dean Jones (argued), Jessica Renee Brown Wilson (argued), Littler Mendelson, P.C., Dallas, TX, for Plaintiff-Appellant. Cynthia L. Hill (argued), Henslee Schwartz, L.L.P., Fort Worth, TX, Donald G. Henslee, Henslee Schwartz, L.L.P., Austin, TX, Meredith Prykryl Walker, Henslee Schwartz, L.L.P., Dallas, TX, for Defendant-Appellee.
Before SMITH, DeMOSS, and OWEN, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Samantha Sanches appeals summary judgment on her claims of sex discrimination and retaliation under 20 U.S.C. § 1681(a) ("title IX") and 42 U.S.C. § 1983. Reduced to its essentials, this is nothing more than a dispute, fueled by a disgruntled cheerleader mom, over whether her daughter should have made the squad. It is a petty squabble, masquerading as a civil rights matter, that has no place in federal court or any other court. We find no error and affirm.
Sanches was a student, and sometimes a cheerleader, at Creekview High School ("Creekview"), in the Carrollton-Farmers Branch Independent School District, from 2005 to 2009. She alleges that during the spring of her junior year in 2008, she was sexually harassed by J.H., who was a Creekview senior and female cheerleader.
J.H. and Sanches's problems began in March 2008, when J.H. was suspended from cheerleading for one week for posting inappropriate Facebook photos. J.H. believed that Sanches's mother, Liz Laningham, had turned over the photos to Creekview administrators, so J.H. threatened to get back at Sanches. On March 12, Laningham warned Cyndi Boyd, Creekview's principal, about J.H.'s comments. Boyd directed Lisa Leadabrand, an assistant principal, to set up a conference with J.H. and her mother to discuss J.H.'s actions.
The same day that Laningham emailed Boyd and Leadabrand about J.H.'s threats, Laningham sent three additional emails—two of which are germane
On March 26, J.H. saw Sanches walking down the hall with J.H.'s ex-boyfriend, C.P., and discovered that Sanches had been dating C.P. since spring break.
Laningham was worried that the senior girls would try to disadvantage her daughter in the upcoming cheerleader tryouts on April 18; she was upset at what she believed to be the administration's preferential treatment of the senior cheerleaders over Sanches. As a result, Laningham's lawyer wrote a six-page letter to the superintendent, Annette Griffin, complaining of a range of activity: Laningham's belief that Creekview favored J.H., K.O., and M.W. over Sanches; problems with the booster club; Laningham's conflict with the administration over the end-of-year video; and other alleged wrongs.
The school district responded to Laningham's letter on April 17, the day before tryouts, through its attorney. The letter noted that "[t]he District takes all such allegations seriously, and, with advice and assistance from this firm, intends in due course to fully and thoroughly review such matters and the requested categories of relief." Preliminarily, however, it notified Laningham that the tryouts would proceed as scheduled. The district believed that the process was fair and impartial: Unbiased judges unaffiliated with Creekview scored the participants, and even if the routine was excessively difficult, it was equally difficult for all the girls.
Before the district sent that response, however, Creekview made changes to the cheerleader tryouts of its own accord. The week of April 14-18 consisted of a clinic at which the students who wanted to try out for the squad learned the routines and practiced with the guidance of the seniors and coaches. On Monday night, after the first night of the clinic, J.H., K.O., and M.W. drove by Sanches's house intending to run up to the front door, ring the doorbell, and run away. But as the girls sat in their car parked outside the house, Laningham saw the girls and chased them away.
The girls voluntarily told Leadabrand what they had done, and Leadabrand in turn reported their actions to Boyd. After investigating the incident further, Boyd notified the girls and their parents on Wednesday, April 16, that they would not be allowed to participate in the clinic for the rest of the week. Boyd explained that such action was necessary "to protect the cheer process, make it equitable to all, and remove any possible threat of perceived intimidation." In response to that punishment, nine of the ten varsity cheerleaders quit the team.
Ultimately, Sanches did not make the varsity squad. She argues that her scores were suspiciously lower than prior years' tryouts, but she has not pointed to any evidence that the outside judges were partial
Sanches was allegedly devastated by not making the squad. It was at that point that Laningham began to escalate her complaints against J.H. On April 23, Laningham sent three emails to Boyd complaining of sexual harassment against Sanches. She claimed (1) that on April 11, J.H. had overheard Sanches in the locker room discussing a rash on Sanches's breast, then J.H. started a rumor that Sanches "had a hickey on her boob"; (2) that on April 15, J.H. "cornered" Sanches in the hallway during a passing period, "told [her] that she [J.H.] was having sex with [C.P.]," and "physically touched her by wiping the tears from [Sanches's] eyes"; and (3) that on April 22, J.H. slapped C.P.'s buttock as she walked by Sanches and C.P. and stated that "your ass is so cute and you and [Sanches] are so cute!" Laningham made sure to point out in her emails that the first incident occurred on "the last school day prior to tryout week," the second on "the second day of tryout week."
Boyd investigated all three incidents and took statements from the parties involved. She discovered that J.H. was not in the locker room when Sanches discussed the mark on her breast, so J.H. could not have overheard Sanches. J.H. also completely denied the allegation. Further, Sanches was the one who began openly discussing the rash in front of many girls. Regarding the hallway incident, J.H. admitted to talking to Sanches and wiping away her tears but said she was doing so to comfort Sanches because she understood that C.P. was "playing" both of them. Regarding the butt-slap incident, J.H. again admitted to her actions, but C.P. did not find the slap offensive, so no action was taken.
On April 29, while Creekview was investigating Laningham's three complaints, J.H.'s parents wrote Boyd a letter describing their "formal complaint for harassment of [their] daughter" by Laningham and Sanches for bringing unsubstantiated and frivolous complaints against J.H. They stated that the administration was unfairly "allow[ing] one parent to drive an entire program and influence decision making," and they believed that removing J.H. from the tryout process was unreasonable. Further, they noted that J.H. was taking anti-anxiety medication because of Laningham's actions and because of false rumors in the student body that J.H. had vandalized the Laninghams' home. They requested that the administration uphold its "obligation to protect all students" equally.
After completing the investigation, Creekview decided not to take further action against Sanches or J.H. The administration was receiving conflicting reports about the incidents from both girls and their parents, and by that point in the school year, J.H. had quit cheerleading and thus was no longer in any of Sanches's classes or extracurricular activities.
Unhappy that their daughter had not made the varsity squad, Sanches's parents filed a grievance with the district on May 1 for "failure to provide an equal opportunity tryout for Varsity Cheer" and "failure to ensure that all candidates were eligible to tryout." The Laninghams mentioned the hickey incident and the hallway incident in which J.H. wiped Sanches's tears, but only in the context of alleging that those incidents created sufficient stress on Sanches that she was at an unfair disadvantage for tryouts. The remainder of the ten-page grievance discussed other complaints the Laninghams had with the fairness of Creekview's tryouts. The "only" relief they sought was for the district to place
On May 9, J.H.'s mother emailed Boyd, Leadabrand, and another assistant principal, Phyllis Reed, to complain that Sanches had harassed J.H. The mother accused Sanches of besmirching J.H.'s reputation by telling another student in her sixth period that J.H. was pregnant with C.P.'s baby. Reed took statements from two students in that class on May 12, and Leadabrand took Sanches's statement on May 14. The same day that Leadabrand spoke to Sanches, Laningham emailed Boyd to report that it was J.H. who had allegedly harassed Sanches by spreading the same pregnancy rumor. Laningham asserted that J.H. had started the rumor to upset Sanches, but J.H. adamantly denied that allegation, and there is no evidence in the record to support Laningham's conclusional accusations based on hearsay.
At some point in May, the district informed Laningham that it would not place Sanches on the cheerleading squad. On June 4, Laningham appealed that decision, noting that in the first grievance procedure, the overseeing administrator had characterized the alleged harm as "that [Sanches] did not make varsity cheer." Laningham stressed that in addition to that harm, she was alleging that Sanches
Despite what appear to be very serious allegations, Laningham's requested relief did not address the alleged student-on-student harassment in any way other than asking that "each coach, teacher and administrator who failed in their duties ... be held accountable by the District." In addition, Laningham asked that Sanches be placed on the varsity squad, that all cheerleader activities for the upcoming year be done anew (including "the selection of big sis/lil sis cheer families"), that the district reimburse the Laninghams for their legal fees, and that the district and Creekview read an apology to the Laninghams in front of the cheerleading organization.
The district denied Laningham's appeal, but Laningham appealed that denial on July 4 to the district's board of trustees. In her final grievance filing, Laningham made a larger issue of the alleged harassment than in her past filings. In the last paragraph, she asserted that the district had been indifferent to the "emotional distress and mental anguish our daughter continues to suffer" and reasserted her concern that Sanches was not "provided a fair and equitable tryout." The Board denied Laningham's final appeal.
On August 14, Boyd sent Laningham a formal report outlining Creekview's investigations of and responses to five of Laningham's allegations of harassment: the "ho" incident, the hickey incident, the hallway incident, the butt-slap incident, and the pregnancy rumor.
• The hickey incident: There was no evidence that J.H. had spread the rumor, and Sanches had openly discussed the mark on her breast in the locker room in front of many girls;
• The hallway incident: Sanches and J.H. stated that J.H. was only trying to comfort a visibly upset Sanches, so no harassment had occurred;
• The butt-slap incident: The school reviewed a video recording of the incident and, after speaking with C.P., Sanches, and J.H., determined that no harassment had occurred, yet still verbally warned J.H.;
• The pregnancy rumor: Boyd did not believe that the rumor constituted sexual harassment, and because of the conflicting allegations of J.H. and Sanches, and the fact that Sanches had admitted to spreading the rumor as well, the school did not punish anyone.
Over the summer, Sanches began seeing a psychiatrist, who diagnosed her with depression and prescribed medication. Sanches claims that she did not want to go back to school and took a course over the summer so she could graduate a semester early. Her grades fell from a 3.0 average her sophomore year to 2.71 her junior year, then rose to 2.86 her senior year.
Sanches sued the district in September 2008, claiming it had violated title IX because it had been deliberately indifferent to her alleged harassment. She also claimed, under § 1983, that the district had violated the Equal Protection Clause by engaging in a policy or practice that caused others to harass her sexually. Finally, she claimed that the district retaliated against her in violation of title IX and § 1983 for complaining about the harassment.
The magistrate judge, to whom this matter was referred by consent, granted the district summary judgment on only the harassment claims under title IX and § 1983 but issued an amended opinion and order that also granted the district summary judgment on both retaliation claims. Sanches filed a motion with a district judge to vacate the magistrate judge's opinion and order, but the district judge denied it. Sanches appeals summary judgment on all four claims and the district judge's decision not to vacate the magistrate judge's ruling.
"We review [a] summary judgment de novo." Dunn-McCampbell Royalty Interest, Inc. v. Nat'l Park Serv.,
A. Title IX.
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). A school district that receives federal funds may be liable for student-on-student harassment if the district (1) had actual knowledge of the harassment, (2) the harasser was under the district's control, (3) the harassment was based on the victim's sex, (4) the harassment was "so severe, pervasive, and objectively offensive that it effectively bar[red] the victim's access to an educational opportunity or benefit," and (5) the district was deliberately indifferent to the harassment. See Davis ex rel. LaShonda D. v. Monroe Cnty. Bd. of Educ.,
Same-sex sexual harassment is actionable under title IX. Doe ex rel. Doe v. Dallas Indep. Sch. Dist.,
Nor does the rest of J.H.'s conduct appear to be based on Sanches's sex, and Sanches does not cite a single case for support. J.H. was upset with Sanches because Sanches was dating J.H.'s ex-boyfriend and because J.H. believed Laningham had gotten her in trouble with the school. There is nothing in the record to suggest that J.H. was motivated by anything other than personal animus. Her conduct—slapping C.P.'s buttock and perhaps starting rumors that she was pregnant and that Sanches had a hickey on her breast—is more properly described as
Even if J.H.'s alleged harassment was based on sex, it was not severe, pervasive, or objectively unreasonable. Sanches cites several cases and argues that the alleged harassment she suffered was just as severe as or worse than what those victims endured. All of those cases, however, involve conduct much more severe, pervasive, or objectively unreasonable than what Sanches claims she was subjected to.
First, she cites Hayut v. State University of New York,
Next, Sanches cites East Haven, which, as discussed above, involved the daily mocking, for five weeks, of a student who had been raped. Being constantly called a "liar" and a "slut" after having been raped is undoubtedly more severe than being called a "ho" once for nabbing one's friend's ex-boyfriend.
Third, Sanches relies on Roe ex rel. Callahan v. Gustine Unified School District,
Finally, Sanches cites Doe ex rel. Pahssen v. Merrill Community School District,
In addition to the fact that Sanches has not cited any precedent that supports her arguments, looking at J.H.'s conduct against the Supreme Court's strenuous standard leaves little doubt that the treatment of Sanches—even if it was harassment at all—was not severe, pervasive, or objectively unreasonable. Whether conduct rises to the level of actionable harassment "depends on a constellation of surrounding circumstances, expectations, and relationships, including, but not limited to, the ages of the harasser and the victim and the number of individuals involved." Davis, 526 U.S. at 651, 119 S.Ct. 1661 (internal citations and quotation marks omitted).
In distinguishing actionable harassment under title VII from that under title IX, the Davis Court explained that courts "must bear in mind that schools are unlike the adult workplace and that children may regularly interact in a manner that would be unacceptable among adults." Id. "[E]arly on, students are still learning how to interact appropriately with their peers. It is thus understandable that, in the school setting, students often engage in insults, banter, teasing, shoving, pushing, and gender-specific conduct that is upsetting to the students subjected to it." Id. at 651-52, 119 S.Ct. 1661. Thus, to be actionable, the harassment must be more than the sort of teasing and bullying that generally takes place in schools; it must be "severe, pervasive, and objectively unreasonable." Id. at 652, 119 S.Ct. 1661. The Court further warned, in response to the concern that a school might be liable for any negative student interactions, that courts should not be "mislead ... to impose more sweeping liability than" what title IX requires. Id.
Were we to find that Sanches's alleged harassment was severe, pervasive, and objectively unreasonable, no conduct would be beyond the reach of title IX. Dating and relationships are an inescapable part of high school, as is the resulting stress. It is a trying time for young people, who experience a wide range of emotions and often lack the skills to control them. J.H. was acting like a typical high-school girl whose ex-boyfriend began dating a younger cheerleader. That is the sort of unpleasant conflict that takes place every day in high schools, and it is not the proper stuff of a federal harassment claim.
It makes no difference to our analysis that Sanches was sincerely upset, and we assume that she was. The standard is not subjective; instead it is whether the harassment was severe, pervasive, and objectively unreasonable. J.H.'s conduct may have been inappropriate and immature and may have hurt Sanches's feelings and embarrassed her, but it was not severe, pervasive, and objectively unreasonable. Summary judgment is appropriate.
The school district was not deliberately indifferent to the alleged harassment. For a school to be liable under title IX, its response, or lack thereof, to the harassment must be "clearly unreasonable in light of the known circumstances." Id. at 648, 119 S.Ct. 1661. That is a high bar, and neither negligence nor mere unreasonableness is enough. Id. at 642, 648, 119 S.Ct. 1661. Schools are not required to
Sanches has put forth two arguments why the school's response was clearly unreasonable: first, that the administration conducted sham investigations that did not remedy the harassment; and second, that Creekview did not follow the district's procedures for reporting sexual harassment, thus making any action Creekview took clearly unreasonable. Neither argument is convincing.
Sanches asserts that school officials unfairly dismissed her allegations without investigating the incidents. She acknowledges that Creekview took statements after each reported event, spoke to J.H. about her conduct, and removed J.H. from her sixth-period class and cheerleading tryouts, but that those responses were ineffective, so the school's investigations were shams.
Ineffective responses, however, are not necessarily clearly unreasonable. In Doe ex rel. Doe v. Dallas Independent School District,
Similarly, the district's responses here were not clearly unreasonable merely because the actions continued or because Laningham was unhappy that the district did not remove J.H. from cheerleading or force-place Sanches onto the squad. Each time Laningham lodged a complaint, a school official took statements from the students, who often gave conflicting accounts. After the "ho" incident, J.H. was immediately transferred out of Sanches's class. That the school left them together in their fourth-period cheerleading class is not clearly unreasonable. Considering J.H.'s actions up until that point, we will not second-guess the school's belief that minimizing the number of interactions between the girls might alleviate their tension and that removing one of them from the squad was itself an unreasonable step in light of the circumstances.
It was only after Sanches failed to make the squad that Laningham began her barrage of accusations against J.H. It is true that the hickey, hallway, and butt-slap incidents occurred during tryout week and may have caused Sanches stress, but Creekview was not notified of those occurrences until after tryouts were over. By that point, Boyd's banning of the senior cheerleaders from tryouts had induced all the senior girls, except one, to quit, so Sanches no longer had any classes or extracurricular activities with J.H. Creekview's investigations of those three incidents led to conflicting statements from the girls, and so it determined that no further action was warranted considering the non-severity of the allegations and the
Laningham demanded, because of what she believed to be the impartiality of tryouts and the undue stress that Sanches suffered, that the school immediately force-place Sanches on the varsity squad. Officials at Creekview and the district investigated her concern, and all reached the same conclusion: There was no evidence that other girls received preferential treatment during tryouts; the difficult routine did not place Sanches at an unfair disadvantage; and impartial judges had scored the girls. We emphatically decline to say that the district's decision not to place Sanches on the cheerleading squad—the very source of her troubles—constitutes deliberate indifference to any harassment.
The district's actions also stand in sharp contrast to those in other cases in which school officials were deliberately indifferent.
Sanches claims the district was deliberately indifferent because it failed to follow its own procedures regarding sexual-harassment complaints. Sanches states that the harassment policy directs a principal to contact the district's title IX coordinator or the superintendent immediately following any allegation of harassment, and Boyd's failure to do so is evidence of deliberate indifference.
But just because Boyd allegedly failed to follow district policy does not mean that her actions were clearly unreasonable. A district's "failure to comply with [its] regulations ... does not establish the requisite ... deliberate indifference." Gebser v. Lago Vista Indep. Sch. Dist.,
Even if Boyd had reported the conduct to the title IX coordinator or the superintendent, Creekview's administrators took precisely the action that the policy required.
If Boyd had notified the title IX coordinator or superintendent of Laningham's complaints, they would have directed her, according to district policy, to conduct interviews and weigh the merits of the allegations, which is precisely what Boyd did. Her failure immediately to report Laningham's numerous complaints is therefore not clearly unreasonable, so the district was not deliberately indifferent to Sanches's alleged harassment. Because the supposed harassment was not based on sex, it was not severe, pervasive, or objectively unreasonable, and the district was not deliberately indifferent to it, we affirm summary judgment on the title IX claim.
B. Title IX Retaliation.
Sanches claims that she received no notice that the magistrate judge would be addressing her title IX retaliation claim, so there was a violation of the ten-day notice requirement of Federal Rule of Civil Procedure 56. That is incorrect. Although the district did not explicitly state in its initial brief that it sought summary judgment as to both Sanches's title IX harassment and retaliation claims, it did clarify its motion to seek summary judgment for both in its reply brief. The magistrate judge did not mention Sanches's title IX claim in his initial order of summary judgment, but that does not negate the fact that the district's reply brief put Sanches on notice.
Sanches's substantive argument regarding the retaliation claim is also unconvincing. To establish title IX retaliation, Sanches must show that the district or its representatives took an adverse action against her because she complained of harassment. Jackson v. Birmingham Bd. of Educ.,
Those conclusional statement are not supported by the record: J.H. was removed from Sanches's class, Leadabrand reported J.H. to Boyd after the drive-by incident that led to J.H.'s ban from the clinic, and by the time the administration had heard about the hickey, hallway, and
C. Section 1983 Claim.
To state a claim under § 1983 for a violation of the Equal Protection Clause, Sanches must show that her sexual harassment was the result of a policy or practice of the district. Fitzgerald, 129 S.Ct. at 797. Sanches argues that the harassment of her was caused by the district's "practice of deliberate indifference to allegations of harassment." As discussed above, however, (1) any harassment was not based on her sex, so there is no constitutional violation; and (2) there is no evidence that the district was ever deliberately indifferent, so we affirm summary judgment for the district.
D. Section 1983 Retaliation Claim.
To overcome summary judgment on her § 1983 retaliation claim, Sanches must present some evidence that the district retaliated against her because she complained of sex discrimination. Cf. Jackson, 544 U.S. at 184, 125 S.Ct. 1497 (stating the standard in the similar title IX context). Sanches asserts that the district did so by "sponsoring students reading defamatory letters in class relating to Sanches," departing from district policy regarding sexual harassment complaints, and "creating blockades and consistent difficulties for Sanches."
Those assertions, however, are unsupported by the record. First, after Laningham informed Boyd of the letter that K.O. had read to the cheerleading class, Boyd reprimanded McAtee and told him she was even considering removing him from his coaching position for the following year. Second, as mentioned above, Boyd's failure to notify the title IX administrator was not clearly unreasonable. And finally, the "blockades and consistent difficulties" that Sanches refers to are the district's multiple denials, through the grievance process, to reinstate her on the cheerleading squad, because it believed that there was no evidence that the tryouts had been conducted unfairly. Because Sanches has failed to point to any evidence that the district retaliated against her, we affirm summary judgment on this claim.
This matter was referred for final decision to Magistrate Judge Paul Stickney by mutual consent of the parties pursuant to 28 U.S.C. § 636(c). After Judge Stickney had issued his amended opinion and order, Sanches filed a motion with the district court to vacate the summary judgment under 28 U.S.C. § 636(c)(4), which provides that a district "court may, for good cause shown on its own motion, or under extraordinary circumstances shown by any party, vacate a reference of a civil matter to a magistrate under this subsection." The district court denied the motion, and Sanches appeals.
We review denials of motions to vacate under § 636(c)(4) for abuse of discretion. See Lyn-Lea Travel Corp. v. Am. Airlines, Inc.,
Not content to raise this issue of law in a professional manner, Sanches and her attorneys launched an unjustified attack on Magistrate Judge Stickney. The main portion of the argument on this point, contained in Sanches's opening brief, reads verbatim as follows:
These sentences are so poorly written that it is difficult to decipher what the attorneys mean, but any plausible reading is troubling, and the quoted passage is an unjustified and most unprofessional and disrespectful attack on the judicial process in general and the magistrate judge assignment here in particular. This may be a suggestion that Magistrate Judge Stickney is incompetent. It might be an assertion that all federal magistrate judges are incompetent. It could be an allegation that only Article III judges are competent. Or it may only mean that Magistrate Judge Stickney's decisions in this case are incompetent, a proposition that is absurd in light of the correctness of his impressive rulings. Under any of these possible readings, the attorneys' attack on Magistrate Judge Stickney's decisionmaking is reprehensible.
The summary judgment on all of Sanches's claims is AFFIRMED.
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