Sondra Hansen v. Board of Trustees of Hamilton ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-1205
S ONDRA J. H ANSEN AND W ILLIAM R. H ANSEN,
INDIVIDUALLY AND ON BEHALF OF C.H.,
Plaintiffs-Appellants,
v.
B OARD OF T RUSTEES OF H AMILTON S OUTHEASTERN
S CHOOL C ORPORATION,1
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 05 C 670—Larry J. McKinney, Judge.
A RGUED S EPTEMBER 23, 2008—D ECIDED D ECEMBER 23, 2008
Before E ASTERBROOK, Chief Judge, and K ANNE and
T INDER, Circuit Judges.
1
The Hansens also named Dmitri B. Alano as a co-defendant
in this action, but he is not involved in this appeal.
2 No. 08-1205
K ANNE, Circuit Judge. Dmitri Alano, a teacher and
assistant band director at Hamilton Southeastern High
School (“HSE”), engaged in an improper sexual relation-
ship with a student. The student’s parents, the Hansens,
filed suit individually and on behalf of their daughter
against both Alano and the Hamilton Southeastern
School Corporation (“HSSC”). They brought claims
against both defendants under Indiana law, the Civil
Rights Act of 1871, 42 U.S.C. § 1983, and Title IX of the
Education Amendments of 1972, 20 U.S.C. § 1681 et seq.
The district court granted summary judgment in favor of
HSSC on all claims. The Hansens appeal, arguing that
the district court erred by (1) granting summary judg-
ment against them on their Title IX claim, (2) exercising
supplemental jurisdiction over their state claims against
HSSC, and (3) granting summary judgment against them
on those state claims. We consider whether the district
court’s decisions were proper, and we conclude that they
were.
I. B ACKGROUND
The Hamilton Southeastern School Corporation serves
K-12 students in a number of schools in central Indiana,
including two senior high schools. HSSC has an established
application process for hiring new teachers. An applicant
must submit an application, resume, references, and
transcripts. The school district’s central office screens the
applications, verifies references, and ensures that a crimi-
nal background and sexual offender check have been
completed. HSSC officials review the applications and
No. 08-1205 3
select a pool of potential candidates, who then interview
with the principal of the school that has the vacancy. From
the pool of candidates, the principal recommends a
candidate to HSSC’s assistant superintendent. The assistant
superintendent then conducts a final interview, in which
he evaluates the prospective teacher’s methodology
and judgment. If the assistant superintendent is comfort-
able with the applicant, he makes a hiring recommenda-
tion to the school board, which makes the final hiring
decision.
In addition to its hiring policies and procedures, HSSC
has general policies prohibiting discrimination and sexual
harassment, and it provides regular sexual harassment
training to all of its teachers. HSSC also maintains guide-
lines on proper behavior between teachers and students,
which are recorded in a handbook available to both
teachers and students.
Dmitri Alano graduated with a bachelor’s degree in
music education from Butler University in 1987. After
graduating, Alano served as the director of instrumental
music and the band director at Waldron High School from
1987 to 1998. In 1998, HSSC hired Alano as a teacher
and assistant band director at HSE.
While a student at Butler and after graduating, Alano
participated in a music ensemble that performed around
the state. During a visit to HSE, Alano met Michael
Niemiec, the school’s band director. In 1992, after the
ensemble lost its trombone player, Niemiec auditioned and
joined the group. Alano and Niemiec became better
acquainted, and in the summer of 1994, Alano volunteered
4 No. 08-1205
to assist Niemiec with the HSE marching band. Alano
assisted Niemiec in this capacity during the next four
summers.
In 1998, due to the school’s growth, HSE sought to
employ an assistant band director. Niemiec encouraged
Alano to apply for the position. Alano applied according
to HSSC’s normal application procedure. He submitted
the required application materials, including his resume,
transcripts, references, and recommendations. Among
his materials, Alano submitted a positive recommend-
ation from the principal at Waldron High School, his
previous supervisor. The principal strongly recom-
mended Alano and expressed no reservation about his
ability to perform the job. Alano also submitted a com-
pleted questionnaire that asked whether he had ever been
investigated for, charged with, or resigned because of any
misconduct, including sexual abuse or misconduct. Alano
replied “no” to all questions and signed the form.
HSSC confirmed that Alano had a valid Indiana teacher’s
license, which meant that he had passed a criminal back-
ground check. The school district also confirmed that
Alano was not on the sex offender registry.
Alano interviewed with the principal at HSE, Glen
Nelson. Nelson checked Alano’s references by calling an
assistant principal at Waldron, and he spoke with Niemiec
about Alano. Following the interview, Nelson recom-
mended to the assistant superintendent, Dr. Richard
Hogue, that HSSC hire Alano. Hogue contacted Nelson
about Alano and the particular needs for the open posi-
tion. Due to the importance of the position, Hogue
No. 08-1205 5
also called Niemiec personally. Niemiec again expressed
no reservations about Alano, having known him for some
time both professionally and socially. Hogue had worked
with Niemiec since hiring him in 1986, and Niemiec’s
opinion was important to his decision. Last, Hogue per-
sonally interviewed Alano. Following the interview, Hogue
agreed to recommend Alano for employment and sent the
recommendation to the school board for final approval.
The school district hired Alano, effective July 1,1998. From
1998 to 2000, Alano served as the assistant band director
and taught classes at HSE without incident.
During the 2000-2001 school year, Alano began a sexual
relationship with C.H., a student enrolled in band and
one of his classes. C.H. was born in 1986, and she
attended HSE from 2000 to 2004. During her freshman and
sophomore years, C.H. and Alano engaged in sexual
banter, which progressed to sexual contact on multiple
occasions. The sexual encounters occurred in the school’s
band room, music practice rooms, or band offices. Accord-
ing to C.H., Alano provided her passing grades in ex-
change for the relationship. C.H. did not disclose the
relationship to anyone at or around the time it occurred,
and she admittedly concealed the relationship from
school officials, teachers, her parents, and her boyfriend.
In 2002, at the end of her sophomore year, C.H. quit band
and had no further sexual contact with Alano.
Nearly two years later, in January 2004, the Hansens
hospitalized C.H. for substance abuse treatment. On
January 19, 2004, C.H. admitted to a therapist that she
engaged in a sexual relationship with a teacher. This was
6 No. 08-1205
the first time she revealed the relationship to anyone. The
hospital informed her parents, and local police began a
criminal investigation. Police notified HSSC officials of the
allegations, which was the first time the school learned of
Alano’s misconduct. The school district promptly sus-
pended Alano, and he ultimately resigned from the
school after pleading guilty to sexual battery.
During the investigation of Alano’s misconduct toward
C.H., investigators learned that he had engaged in two
prior relationships with former students. The first was
with Julie Harker, who is now Alano’s wife. Harker had
been Alano’s student at Waldron High School, but the
two began their romantic relationship after Harker gradu-
ated. Both Alano and Harker denied that anything inap-
propriate occurred while she was his student, and the
Hansens have produced no evidence to the contrary. The
Hansens noted that Niemiec knew that Alano married a
former student because he was acquainted with Alano
and attended their wedding. They also asserted that it
was “common knowledge” around HSE that Alano mar-
ried a former student.
Alano’s second relationship with a former student was
with Alicia Rhoades, which began while she was a
student at Waldron High School. The two engaged in a
physical relationship while Rhoades was a student,
which led to sexual intercourse after she graduated. No
one at HSE or Waldron knew about this relationship
until investigators learned of it after Alano’s arrest in 2004.
The Hansens brought two federal claims, under Title IX
and 42 U.S.C. § 1983, and five claims under Indiana state
No. 08-1205 7
law, naming both Alano and HSSC as defendants in each.
Both defendants filed motions for summary judgment.
On October 19, 2007, the district court granted sum-
mary judgment in favor of HSSC on all seven counts. The
district court granted summary judgment in Alano’s favor
on the Title IX count and the state law claim for negligent
hiring, retention, and supervision. The remaining five
claims against Alano remain pending in the district court,
including the federal claim under 42 U.S.C. § 1983. On
December 28, 2007, the district court granted the
Hansens’ Motion for Issuance of Final Order under
Federal Rule of Civil Procedure 54(b), allowing the
present appeal. The district court stayed the proceedings
against Alano, pending the outcome of this appeal.
II. A NALYSIS
We review the district court’s decision to grant sum-
mary judgment in favor of HSSC de novo, and we draw
all reasonable inferences in the non-moving party’s favor.
See Lucas v. PyraMax Bank, 539 F.3d 661, 666 (7th Cir. 2008).
Summary judgment is appropriate where there is no
genuine issue as to any material fact. Fed. R. Civ. P. 56(c).
To survive a motion for summary judgment, the non-
moving party must “come forward with specific facts
showing that there is a genuine issue for trial.” Keri v.
Bd. of Trs. of Purdue Univ., 458 F.3d 620, 628 (7th Cir. 2006).
The Hansens argue that the district court erred in
granting summary judgment against them on their Title IX
claim against the school district. After dismissing
their Title IX claim, the district court exercised jurisdic-
8 No. 08-1205
tion over their state law claims and granted summary
judgment against the Hansens on those claims as well. The
Hansens argue that the district court erred by exercising
supplemental jurisdiction over the state claims. If juris-
diction was proper, the Hansens assert that the court
erred by granting summary judgment against them. We
address each issue below.
A. Title IX
Title IX prohibits discrimination on the basis of sex in
educational programs or activities that are supported by
federal financial assistance. 20 U.S.C. § 1681(a). Congress
authorized an administrative enforcement scheme for
Title IX, but the Supreme Court has recognized an
implied private right of action for the victim of illegal
discrimination to enforce the statute, Cannon v. Univ. of
Chi., 441 U.S. 677, 717 (1979), as well as the ability to
recover monetary damages, Franklin v. Gwinnett County
Pub. Sch., 503 U.S. 60, 76 (1992).
In enacting Title IX, Congress sought to hold educa-
tional institutions liable for their own misconduct, not for
the misconduct of an employee. See, e.g., Gebser v. Lago Vista
Indep. Sch. Dist., 524 U.S. 274, 289-90 (1998); Smith v. Metro.
Sch. Dist. Perry Twp., 128 F.3d 1014, 1018-19 (7th Cir. 1997).
That said, a teacher’s sexual harassment of a student may
render a school district liable for sex discrimination under
Title IX. Franklin, 503 U.S. at 75; see also Metro. Sch. Dist.
Perry Twp., 128 F.3d at 1021-22. The Hansens argue that
the district court should have applied a “knew or should
No. 08-1205 9
have known” standard to their Title IX claim, meaning
that if HSE or HSSC knew or should have known of
Alano’s improper conduct and failed to respond appro-
priately, the school district may be liable for sex discrimi-
nation.
The standard the Hansens assert is incorrect. The Su-
preme Court has flatly rejected applying a “knew or should
have known” standard to Title IX claims. Gebser, 524 U.S.
at 277. When a Title IX claim for damages against the
educational institution is based on a teacher’s conduct, the
plaintiff must prove that “an official of the school district
who at a minimum has authority to institute corrective
measures . . . has actual notice of, and is deliberately
indifferent to, the teacher’s misconduct.” Id. (emphasis
added); see also Delgado v. Stegall, 367 F.3d 668, 671 (7th
Cir. 2004).
In Gebser, the Supreme Court considered the limits of a
school district’s liability under Title IX, thoroughly ana-
lyzed the statute’s history and purpose, and expressly
refused to impose liability on a school district unless it
had actual knowledge of a teacher’s sexual harassment and
acted with deliberate indifference to the misconduct. 524
U.S. at 288-93. The Court rejected the use of both
vicarious liability and constructive notice principles in
Title IX cases. Id. at 285. The Court reasoned that a school
district’s liability under Title IX arose from “an official
decision by the recipient not to remedy the violation,” id.
at 290, that is, where the school district’s own actions
effectively “cause[d]” the discrimination, id. at 291.
As such, a school district is subject to a private damages
action only where it is deliberately indifferent to known
10 No. 08-1205
acts of discrimination or harassment. Id. at 290-91; see also
Davis ex rel. LaShonda D. v. Monroe County Bd. of Educ., 526
U.S. 629, 642-43 (1999) (discussing Gebser and stating that
a school district could be liable under Title IX “by remain-
ing deliberately indifferent to acts of teacher-student
harassment of which it had actual knowledge”); Gabrielle
M. v. Park Forest-Chi. Heights, Ill. Sch. Dist. 163, 315
F.3d 817, 823 (7th Cir. 2003).
The Hansens cited our decision in Delgado to support
their position that something less than actual knowledge
of a teacher’s misconduct will suffice as a predicate to
Title IX liability. Their reliance on our opinion in that case
is misplaced. In Delgado, we specifically stated that, under
Gebser, a plaintiff in a Title IX damages suit based on a
teacher’s behavior must prove both “actual knowledge
of misconduct, not just actual knowledge of the risk of
misconduct, and . . . that the officials having that knowl-
edge decided not to act on it.” 367 F.3d at 672. We noted
that a school district need not posses actual knowledge
of a teacher’s acts directed at a particular plaintiff, but it
must still have actual knowledge of misconduct that
would create risks “so great that they are almost certain to
materialize if nothing is done.” Id. Thus, if a teacher had
been known to be a “serial harasser,” a school district
might be found to have actual knowledge of that teacher’s
misconduct and that students may be at great risk. Id.Therefore, in order to survive summary judgment, the
Hansens must establish a genuine issue of fact as to
whether an appropriate official at HSSC or HSE had (1)
actual knowledge of misconduct by Alano that created a
No. 08-1205 11
serious risk to its students, and (2) responded with delib-
erate indifference to the misconduct. They fail to do so.
The Hansens have presented no evidence from which
a reasonable juror could infer that an official at HSSC or
HSE who had authority to institute corrective measures
had actual knowledge of Alano’s misconduct against C.H.
or any other former student. C.H. admitted that she
concealed the relationship from school officials, her
parents, and her boyfriend. The first time she told anyone
of the relationship was to her therapist in January 2004,
and the Hansens presented no evidence that anyone at
the school knew of the misconduct until that time. Upon
learning of the allegations, the school district promptly
suspended Alano.
The Hansens also argued that HSSC knew of Alano’s
relationships with former students Rhoades and Harker,
and that Alano therefore presented a serious risk of harm
to other students. The record, however, reveals nothing
to indicate that HSSC knew of Alano’s relationship with
Rhoades until after C.H. disclosed her relationship
with Alano in 2004, a fact the parties do not dispute. And
while Niemiec and other faculty at HSE may have
known that Harker was Alano’s former student before
marrying him, nothing in the record suggests that the
two engaged in a sexual or otherwise improper relation-
ship while she was his student. Simply knowing that a
teacher married a woman formerly his student, without
actual knowledge of misconduct, does not suffice to hold
a school district liable under Title IX. The Hansens even
state in their brief that “[w]hile HSE may not have had
12 No. 08-1205
‘actual knowledge’ of the relationships,” the information
that it did have “should have been enough to elicit
some concern over their students” and therefore suf-
ficient for a Title IX claim. (Petr.’s Br. 10.)
It is not enough. The Hansens produced no evidence
from which a reasonable juror could infer that the
school district had actual knowledge of any misconduct
by Alano. Accordingly, HSSC is entitled to summary
judgment on the Title IX claim.
B. Supplemental Jurisdiction
After the district court granted summary judgment
against the Hansens on their Title IX claim, it addressed
their state claims on the merits and granted summary
judgment against them. Even though the Hansens chose to
bring this suit in federal court, they assert that the court
should have declined to exercise jurisdiction over the
remaining state claims. Thus, before we reach the sub-
stance of the Hansens’ state law claims against HSSC,
we first consider whether the district court erred in
retaining jurisdiction over them. We review a district
court’s decision to exercise supplemental jurisdiction
under 28 U.S.C. § 1367 for an abuse of discretion. Groce
v. Eli Lilly & Co., 193 F.3d 496, 499-500 (7th Cir. 1999).
A district court has original jurisdiction “of all civil
actions arising under the Constitution, laws, or treaties of
the United States.” 28 U.S.C. § 1331. A district court also
has supplemental jurisdiction over any claim that is “so
related to claims in the action within such original juris-
No. 08-1205 13
diction that they form part of the same case or contro-
versy.” 28 U.S.C. § 1367(a). Congress enacted § 1367 to
codify long-standing principles of pendent and ancillary
jurisdiction, City of Chi. v. Int’l Coll. of Surgeons, 522 U.S.
156, 164-65 (1997), whereby federal courts may exercise
supplemental jurisdiction over a state claim if the state
and federal claims “derive from a common nucleus of
operative fact,” United Mine Workers v. Gibbs, 383 U.S. 715,
725 (1966).
As an initial matter, the district court properly exercised
supplemental jurisdiction over the Hansens’ state claims
under § 1367(a) at the outset of this litigation. The district
court’s original jurisdiction derived from the Hansens’
federal claims against Alano and HSSC under Title IX and
42 U.S.C. § 1983. Neither party disputes that the federal
and state claims against both defendants form part of the
same case or controversy. All claims arose out of the
same facts: Alano’s sexual misconduct against a student.
The question the Hansens raise is whether the district
court should have declined to exercise supplemental
jurisdiction over the state claims, pursuant to § 1367(c)(3),
after it granted summary judgment in HSSC’s favor on
the Title IX claim. According to § 1367(c), a district court
may decline to exercise supplemental jurisdiction over
a state law claim if:
(1) the claim raises a novel or complex issue of State
law,
(2) the claim substantially predominates over the
claim or claims over which the district court has
original jurisdiction,
14 No. 08-1205
(3) the district court has dismissed all claims over
which it has original jurisdiction, or
(4) in exceptional circumstances, there are other
compelling reasons for declining jurisdiction.
28 U.S.C. § 1367(c). The Hansens have argued only that the
court should have relinquished jurisdiction pursuant to
§ 1367(c)(3).
When all federal claims have been dismissed prior to
trial, the principle of comity encourages federal courts to
relinquish supplemental jurisdiction pursuant to
§ 1367(c)(3). See Groce, 193 F.3d at 501; Wright v. Associated
Ins. Cos., 29 F.3d 1244, 1252 (7th Cir. 1994). But while a
district court may relinquish its supplemental juris-
diction if one of the conditions of § 1367(c) is satisfied, it
is not required to do so. See Williams Elecs. Games, Inc. v.
Garrity, 479 F.3d 904, 907 (7th Cir. 2007) (discussing
whether a district court erred by relinquishing supple-
mental jurisdiction after dismissing all federal claims).
Supplemental jurisdiction is a doctrine of discretion, and
its “justification lies in considerations of judicial economy,
convenience and fairness to litigants.” Gibbs, 383 U.S.
at 726.
The Hansens’ argument that the district court erred by
reaching the merits of their state claims fails for two
reasons: (1) the district court still had original jurisdiction
over pending federal claims against HSSC’s co-defendant,
Alano, and (2) even if no federal claims remained against
either defendant, the district court did not abuse its
discretion by exercising supplemental jurisdiction over
the Hansens’ state claims.
No. 08-1205 15
First, contrary to the Hansens’ argument, the district
court had not dismissed all federal claims over which it
had original jurisdiction. The district court’s original
jurisdiction derived from claims against both Alano and
HSSC under 42 U.S.C. § 1983 and Title IX. After granting
summary judgment on the Title IX claim, the district
court retained original jurisdiction over the claims
against Alano, including the claim under 42 U.S.C. § 1983,
and the court stayed those proceedings pending the
results of this appeal.
Therefore, the district court’s discretion to relinquish
jurisdiction under § 1367(c)(3) was never triggered,
because the court did not dismiss “all claims over which
it has original jurisdiction.” See 18 U.S.C. § 1367(c)(3).
Indeed, even if the Hansens had not brought a single
federal claim against the school district, the district court
would have had supplemental jurisdiction over the state
claims against HSSC because they constituted the same
“case or controversy” as the federal claim against co-
defendant Alano. See 28 U.S.C. § 1367(a). Thus, the dis-
trict court did not err by exercising jurisdiction over the
Hansens’ state claims against HSSC after granting sum-
mary judgment on the Title IX claim.
Second, even if the district court could have relinquished
the Hansens’ state law claims against HSSC under
§ 1367(c)(3), it did not abuse its discretion by retaining
jurisdiction. While a district court may relinquish its
supplemental jurisdiction if one of the conditions of
§ 1367(c) is satisfied, it is not required to do so. See Garrity,
479 F.3d at 907; Groce, 193 F.3d at 500 & n.6 (noting that
16 No. 08-1205
“our case law makes clear” that a district court does not
automatically lose supplemental subject matter juris-
diction once it grants summary judgment on the federal
claim). The district court has broad discretion in deciding
whether to retain supplemental claims. Van Harken v.
City of Chi., 103 F.3d 1346, 1354 (7th Cir. 1997).
A district court deciding whether to retain jurisdiction
pursuant to the factors set forth in § 1367(c) “should
consider and weigh in each case, and at every stage of the
litigation, the values of judicial economy, convenience,
fairness, and comity.” Int’l Coll. of Surgeons, 522 U.S. at 173(quotations omitted); see also Timm v. Mead Corp., 32 F.3d
273, 276-77 (7th Cir. 1994). “That the jurisdictional hook
is eliminated before trial at best only preliminarily
informs the balance; the nature of the state law claims at
issue, their ease of resolution, and the actual, and avoid-
able, expenditure of judicial resources can and should
make the difference in a particular case.” Timm, 32 F.3d at
277. So long as an “arguable balance” of these factors
favors the district court’s determination to exercise juris-
diction, that decision should not be disturbed. Id.A balance of the factors listed above favors the district
court’s decision to exercise jurisdiction over the Hansens’
state claims against HSSC. The district court and the
parties in this case have already expended substantial
judicial resources—litigation began in May 2005, and the
parties have completed discovery. Cf. Wright, 29 F.3d at
1251 (noting that judicial economy is rarely a good
reason to retain jurisdiction when a case is dismissed on
the pleadings, before discovery even begins). The state
No. 08-1205 17
claims against HSSC are based on Alano’s misconduct, and
to litigate Alano’s liability in federal court and the
school district’s liability in state court would duplicate
effort, time, and expense. The claims are intertwined and
judicial economy is served by treating them in one forum.
Furthermore, the correct disposition of the state claims
against HSSC is clear and does not entangle the federal
courts in difficult issues of state law. See Khan v. State Oil
Co., 93 F.3d 1358, 1366 (7th Cir. 1996) (noting that if the
correct disposition of the supplemental claims is clear,
considerations of economy favor retaining jurisdiction),
vacated on other grounds, 522 U.S. 3 (1997); see also Van
Harken, 103 F.3d at 1354. Therefore, even if § 1367(c)
applied, the district court did not abuse its discretion
by retaining jurisdiction of the state claims.
C. Summary Judgment on the State Claims
Having determined that the district court properly
exercised jurisdiction, we consider whether the district
court erred by granting summary judgment in favor of the
school district on the Hansens’ state claims. The claims can
be separated into two categories: (1) claims directly against
HSSC for its own negligence in hiring, supervising, or
retaining Alano, and (2) assorted tort claims for which
HSSC would be vicariously liable for Alano’s wrongful
conduct under the doctrine of respondeat superior. As stated
above, we review a district court’s grant of summary
judgment de novo and consider all inferences in the light
most favorable to the non-moving party. See Lucas, 539
F.3d at 666. The Hansens must present evidence
18 No. 08-1205
showing that there is a genuine issue for trial. Keri, 458
F.3d 628.
1. Negligent Hiring, Supervision, and Retention
The Hansens allege that HSSC acted negligently in
hiring, supervising, and retaining Alano. The district
court granted summary judgment in HSSC’s favor
because it found there to be no evidence that the school
district knew that Alano had engaged in inappropriate
conduct with C.H. or any of his prior students. The
Hansens assert that the district court erred by requiring
them to demonstrate that HSSC had actual knowledge
of Alano’s misconduct. They argue that they produced
sufficient evidence to create a genuine issue of fact under
what they claim is the correct standard: whether HSSC
should have known that Alano had engaged in a habit of
misconduct.
Indiana recognizes a cause of action against an em-
ployer for negligent hiring, supervision, or retention of an
employee. Levinson v. Citizens Nat’l Bank of Evansville,
644 N.E.2d 1264, 1269 (Ind. Ct. App. 1994). Indiana has
adopted the Restatement (Second) of Torts § 317 as the
standard with regard to this tort, under which a court
must determine if the employer exercised reasonable
care in hiring, supervising, or retaining an employee.
Konkle v. Henson, 672 N.E.2d 450, 454-55 (Ind. Ct. App.
1996).
Indiana courts are somewhat unclear on the applicable
standard for holding an employer liable for negligent
No. 08-1205 19
hiring, retention, or supervision. Some decisions state
that to be liable an employer must have actual knowl-
edge of an employee’s habit of misconduct and fail to
respond reasonably. See, e.g., Levinson, 644 N.E.2d at 1269(“In order to prevail on this theory, the plaintiff must show
that the defendant employer negligently retained an
employee who the defendant knew was in the habit of
misconducting himself.”(emphasis added)); Briggs v.
Finley, 631 N.E.2d 959, 966-67 (Ind. Ct. App. 1994) (stating
that an employer may be liable for negligent retention
“only if he knows the employee is in the habit of
misconducting himself in a manner dangerous to oth-
ers”(emphasis added)). Other decisions, however, state
that an employer may be liable if it merely should have
known or had reason to know of the misconduct. See, e.g.,
Grzan v. Charter Hosp. of Nw. Ind., 702 N.E.2d 786, 793 (Ind.
Ct. App. 1998) (holding that a defendant must have
known or “had reason to know” of the misconduct and
failed to take appropriate action); Konkle, 672 N.E.2d at460 (citing Levinson, which states an actual knowledge
standard, but then stating that “[t]o prevail on her claim
[of negligent hiring, supervision, and retention, plaintiff]
must show that the Church Defendants knew or had reason
to know of [defendant’s] misconduct and failed to take
appropriate action” (emphasis added)); Frye v. Am. Painting
Co., 642 N.E.2d 995, 998 (Ind. Ct. App. 1994) (noting that
in an action for negligent retention of an employee,
“evidence of prior similar actions committed by an em-
ployee are often admissible to establish the employer’s
actual or constructive knowledge of the employee’s propen-
sity to commit a later act of violence” (emphasis added)).
20 No. 08-1205
Based on our review of the record in this case, the
Hansens presented no evidence that HSSC either knew,
should have known, or had reason to know that Alano was
in “the habit of misconducting himself.” Levinson, 644
N.E.2d at 1269. Thus, the Hansens failed to satisfy even
the lesser standard, and we need not anticipate how the
Indiana Supreme Court would resolve the question of
whether actual knowledge of misconduct is required to
hold an employer liable for negligent hiring, supervision,
or retention.
The Hansens base their negligent hiring claim on the
fact that Alano allegedly engaged in relationships with
two former students prior to his employment at HSE, one
of whom had become Alano’s wife by the time HSSC
hired him. They further assert that, while the school
district may not have acquired knowledge about the
prior relationships directly, it should have inquired
whether Alano ever had a sexual or physical relationship
with a student, and it chose to ignore “red flags.” How-
ever, the Hansens produced no evidence that HSSC failed
to exercise reasonable care in hiring Alano or that it
knew or should have known of any negative employ-
ment information when it hired Alano.
As detailed above, and taking the facts in the light most
favorable to the Hansens, HSSC followed its established
hiring procedure when it hired Alano. This required him
to submit an application and related materials, provide
references, and undergo a series of interviews with
school officials. Along with the application, Alano com-
pleted a questionnaire stating that he had never been
No. 08-1205 21
investigated, charged with, or resigned because of any
misconduct, including sexual abuse or contact. He re-
ceived positive recommendations from the principal and
an assistant principal at his previous school, and from
Michael Niemiec, HSE’s band director. The school ensured
that Alano possessed a valid teaching license, which the
state issues only after completing a criminal background
check, and also confirmed that Alano’s name was not on
a list of known sex offenders. HSE’s principal, Glen
Nelson, recommended Alano for employment after inter-
viewing him, checking his references, and discussing his
application with Niemiec. The assistant superintendent,
Dr. Hogue, also interviewed Alano, contacted Niemiec,
and agreed to recommend Alano for employment.
During this process, HSSC received no information
that Alano had a history of improper conduct with his
students. Rather, the Hansens acknowledge that HSSC
“may not have had ‘actual knowledge’ of the relationships”
with Rhoades and Harker, but they assert that it “should
have inquired” about past sexual relationships. As noted
above, no one at HSE or Waldron knew about Alano’s
improper conduct with Alicia Rhoades, his former student
at Waldron, nor do the Hansens point to anything indicat-
ing that either school should have known. The Hansens
presented no evidence that Alano’s relationship with
Harker was improper while they were in a teacher-student
relationship. The Hansens seek to impute knowledge to
HSSC because Niemiec knew that Alano married a
former student. But even if HSSC knew or should have
known that Harker was Alano’s former student, the
Hansens fail to demonstrate that this knowledge alone
22 No. 08-1205
would put the school district on notice that Alano’s
relationship with Harker was improper, that he was in a
habit of misconducting himself, or that he otherwise
represented a threat to his students.
The Hansens also argue that HSSC should have asked
Alano directly whether he ever had a sexual or physical
relationship with a former student, citing Interim Health-
care of Fort Wayne, Inc. v. Moyer ex rel. Moyer, 746 N.E.2d
429 (Ind. Ct. App. 2001). In Moyer, the plaintiffs alleged
that a health care agency negligently hired a home health
aide, who later injured a child patient. Id. at 430-31.
Because there was no evidence that the employer
actually contacted any of the aide’s previous employers,
the court found an issue of fact for the jury that precluded
the defendant’s motion for summary judgment. Id. at 435.
A concurring opinion added that to survive summary
judgment, the plaintiffs also must demonstrate proximate
cause, i.e., that had the employer contacted the aide’s
former employers, it would have discovered negative
employment information. Id. at 436-37 (Baker, J., concur-
ring).
Unlike the plaintiffs in Moyer, the Hansens have pre-
sented no evidence that HSSC acted unreasonably in
contacting Alano’s references or former employers, nor
have they presented evidence that any additional refer-
ences would have revealed negative employment infor-
mation had HSSC contacted them. Quite the opposite, all
of the references that Alano provided spoke highly of
him. The Hansens suggest that had the school officials
asked Alano directly, he would have divulged his
No. 08-1205 23
previous relationships, and Alano himself stated this to
be true. HSSC, however, required Alano to complete a
questionnaire that asked whether he had ever been in-
vestigated, charged with, or resigned because of any
misconduct, including sexual abuse or contact. He re-
sponded that he had not, and he signed the statement.
The failure to ask the specific question of whether he
engaged in any prior relationships with a student was not
unreasonable, particularly in light of the school district’s
thorough hiring procedures and the information available.
In sum, nothing in the record creates an inference that
HSSC knew or should have known of any negative em-
ployment information regarding Alano at the time it
hired him. Furthermore, given the school district’s hiring
process, no evidence indicates that it acted unreasonably
in hiring him.
The Hansens’ claim that HSSC negligently retained or
supervised Alano fails for similar reasons. The Hansens
rely on evidence of the same two prior relationships
with former students, discussed above, to create an
inference that Alano had a habit of misconduct and
represented a risk of harm to his current students. For
the same reasons, these two relationships do not establish
that HSSC knew or should have known of any miscon-
duct by Alano. The Hansens point to no additional evi-
dence that suggests that school officials knew or should
have known of misconduct during Alano’s tenure at the
school or that he presented a risk of harm to his students
after he began his employment. Nothing in the record
demonstrates that HSSC was aware of Alano’s relationship
24 No. 08-1205
with C.H. while she was a student, a fact to which both
parties agree. Nor is there any evidence that the school
district acted unreasonably in supervising or retaining
Alano in light of any information it may have had. In
fact, HSSC promptly suspended Alano upon learning of
the allegations. Thus, taking all inferences in the
Hansens’ favor, no genuine issue of material fact exists
regarding whether HSSC negligently hired, retained, or
supervised Alano, and summary judgment in the
school district’s favor was proper.
2. Respondeat Superior
The Hansens also attempted to hold the school district
vicariously liable for Alano’s tortious conduct under the
doctrine of respondeat superior, alleging that the trial court
erred in determining that Alano’s acts were outside
the scope of his employment.2
2
The Hansens allege that Alano’s actions were both within the
scope of his employment (as is required for respondeat superior)
and outside the scope of his employment (as is required for
negligent hiring, supervision, and retention). As the district
court noted in its Order on October 19, 2007, this is inconsistent
with the Indiana Tort Claims Act, Ind. Code § 34-13-3-5(b),
which states that a plaintiff may not sue both a government
employee in a personal capacity and the governmental employer
for the employee’s acts committed within the scope of employ-
ment. See Bushong v. Williamson, 790 N.E.2d 467, 471 (Ind. 2003);
City of Gary v. Conat, 810 N.E.2d 1112, 1118 (Ind. Ct. App. 2004).
(continued...)
No. 08-1205 25
Under the doctrine of respondeat superior, an employer
is vicariously liable for the wrongful or tortious acts of its
employees that were committed within the course and
scope of their employment. Barnett v. Clark, 889 N.E.2d
281, 283 (Ind. 2008). An employee is acting within the
scope of his employment when the injurious act is inciden-
tal to the conduct authorized, or when it furthers, to an
appreciable extent, the employer’s business. Id.; see also
Shelby v. Truck & Bus Group Div. of Gen. Motors Corp., 533
N.E.2d 1296, 1298 (Ind. Ct. App. 1989) (“In order to be
within the scope of employment the employee must be
in the ‘service of the employer.’ ”). Vicarious liability may
even be imposed upon an employer for the criminal acts
of an employee, Barnett, 889 N.E.2d at 284, but an em-
ployer is not liable for an employee’s acts committed
outside the scope of his employment, “even though the
particular injury could not have occurred without the
facilities afforded by the relation of the servant to [the]
master,” Gomez v. Adams, 462 N.E.2d 212, 223 (Ind. Ct.
App. 1984).
An employer is not always immune from vicarious
liability for an employee’s sexual misconduct. See Stropes ex
rel. Taylor v. Heritage House Childrens Ctr. of Shelbyville, Inc.,
547 N.E.2d 244, 249 (Ind. 1989); Southport Little League v.
2
(...continued)
Despite the impropriety of the inconsistent pleadings, the
district court determined that Alano was acting outside the
scope of his employment as a matter of law. We therefore
note the inconsistent pleadings and also consider whether
the district court properly decided this issue.
26 No. 08-1205
Vaughan, 734 N.E.2d 261, 270-71 (Ind. Ct. App. 2000). But
Indiana courts have found whether sexual misconduct
is within the scope of one’s employment to be a genuine
issue of fact only in circumstances where the employee’s
job duties involved extensive physical contact with the
alleged victim, such as undressing, bathing, measuring, or
fitting. Compare Stropes, 547 N.E.2d at 249-50, and Southport
Little League, 734 N.E.2d at 271, with Barnett, 889 N.E.2d
at 286, Konkle, 672 N.E.2d at 457, and Doe v. Lafayette
Sch. Corp., 846 N.E.2d 691 (Ind. Ct. App. 2006), abrogated
on other grounds by State Farm Mut. Auto. Ins. Co. v. Jakupko,
856 N.E.2d 778, 782 & n.2 (Ind. Ct. App. 2006).
In Stropes, the Indiana Supreme Court reversed sum-
mary judgment in favor of the defendant children’s
center, holding that a genuine issue of fact existed as to
whether a nurse’s aide employed by the center acted
within the scope of his employment when he sexually
assaulted a mentally disabled fourteen-year-old patient.
547 N.E.2d at 250. The aide’s authorized job duties in-
cluded physical contact with the victim when undressing
him, bathing him, and changing his clothes—acts “unques-
tionably within the scope of his employment.” Id. at 249.
The sexual assault occurred after the aide undressed
the victim and before the aide completed his tasks of
changing his bed and redressing him. Id. The court
stated that the question of whether one’s conduct falls
within the scope of employment does not turn solely
upon the type of act committed, but “the focus must be
on how the employment relates to the context in which the
commission of the wrongful act arose.” Id. Therefore, the
nature of the aide’s acts was “sufficiently associated” with
No. 08-1205 27
the aide’s authorized duties to avoid dismissal on sum-
mary judgment. Id. at 250.
Similarly, in Southport Little League, the Indiana Court
of Appeals affirmed a jury verdict imposing vicarious
liability on the defendant for an equipment manager who
sexually molested youths participating in a summer
baseball program. 734 N.E.2d at 273. The equipment
manager’s authorized duties included measuring and
fitting the boys with uniforms in an equipment shed near
the baseball stadium, a task involving some physical
contact. Id. at 266. The court cited Stropes and determined
that the circumstances “raise the inference that some of
[defendant’s] acts were authorized by the Little League”
when he committed the wrongful acts of molestation,
and that the trial court properly denied summary judg-
ment. Id. at 269-70.
Consistent with Stropes and Southport Little League,
Indiana courts have declined to hold an employer vicari-
ously liable for an employee’s sexual misconduct in the
absence of some authorized duty requiring physical
contact with the victim. In Konkle, the Indiana Court of
Appeals held that church officials were not vicariously
liable for sexual misconduct by a minister because the
plaintiff produced no evidence that the church authorized
the minister’s acts. 672 N.E.2d at 457. The minister
sexually molested a child on church property on
multiple occasions. Id. at 453. The court noted that the
unauthorized acts were not similar to his authorized
duties as a minister, and vicarious liability should not
accrue simply because the minister had access to the
victim because of his position. Id. at 457.
28 No. 08-1205
Similarly, in Lafayette School Corporation, the Indiana
Court of Appeals declined to hold the defendant school
district vicariously liable for a teacher’s sexual acts
against a student. 846 N.E.2d at 702. The teacher in that
case engaged in a physical relationship with one of his
students, and the relationship involved school time and
property. Id. at 695. The court affirmed summary judgment
on the issue of respondeat superior liability because the
teacher instigated the relationship on his own initiative,
his actions were unrelated to any school function, and the
acts were not incident to any service provided by the
school corporation. Id. at 702. Instead, his acts were “fueled
entirely by self-interest in a romantic relationship” with
the victim, and the acts were therefore unauthorized. Id.The Indiana Supreme Court recently clarified the appro-
priate inquiry regarding the scope of one’s employment,
particularly in cases involving sexual misconduct. See
Barnett, 889 N.E.2d at 286. The plaintiff in Barnett sought
public assistance from her local trustee’s office, and a
male employee advised her that she would have to do
some bookwork for him in order to receive assistance. Id.
at 283. The trustee’s employee reviewed the plaintiff’s
work with her in a back room, then locked the door and
sexually assaulted her. Id. The trial court granted sum-
mary judgment to the trustee employer because the
misconduct was outside the scope of the employee’s
employment. Id. at 286.
The Indiana Supreme court analyzed Stropes and
stressed that the focus should be on “ ‘how the employ-
ment relates to the context in which the commission of the
No. 08-1205 29
wrongful act arose.’ ” Id. at 285 (quoting Stropes, 547 N.E.2d
at 249). In cases involving sexual misconduct, a court
should examine the nature of the employee’s authorized
duties and the extent to which they involve physical
contact or duties similar to those of the nurse’s aide in
Stropes. Id. at 285-86. The court clarified that a statement
by the court in Konkle, which said that “[i]f some of the
employee’s actions were authorized, the question of
whether the unauthorized acts were within the scope of
employment is one for the jury,” Konkle, 672 N.E.2d at 457,
was not a premise stated in Stropes. Barnett, 889 N.E.2d at
285. Rather, the essential inquiry is whether the em-
ployee’s wrongful acts are “sufficiently associated” with
the nature of that employee’s duties and authority. Id.
(quotations omitted). The court concluded that the em-
ployee “was not explicitly or impliedly authorized to
touch or confine applicants for assistance,” that his wrong-
ful acts “were not incidental to nor sufficiently associated
with” his authorized duties, that these acts did not
“further his employer’s business,” and that “they were
not motivated to any extent by his employer’s inter-
ests.” Id.
Applying the above standards and taking the facts in the
light most favorable to the Hansens, we find this case
similar to Barnett, Konkle, and Lafayette School Corporation.
We therefore agree with the district court that Alano’s
sexual misconduct was not “sufficiently associated” with
his duties as a band instructor so as to fall within the
scope of his employment. Alano’s authorized duties did
not include physical contact with his high school students
similar to the employees’ duties in Stropes and Southport
30 No. 08-1205
Little League. Alano was not explicitly or impliedly autho-
rized to touch students, and his acts of sexual abuse were
not an extension of any authorized physical contact. His
conduct did nothing to further HSSC’s business, nor
were those acts motivated by the school district’s inter-
ests. Instead, his conduct was motivated by his own
personal desire to engage in a sexual relationship.
The Hansens asserted that because Alano was a music
teacher and had access to “secluded but permitted access
band practice rooms,” his conduct stemmed from an
authorized activity. (Petr.’s Br. 17.) But the fact that “the
particular injury could not have occurred without the
facilities afforded by the relation of the servant to [the]
master” does not render the act within the scope of one’s
employment. Gomez, 462 N.E.2d at 223; see also Lafayette
Sch. Corp., 846 N.E.2d at 702 (“[S]imply because [the
teacher] used LSC’s equipment and facilities to initiate
a relationship with [the victim], his acts did not neces-
sarily fall within his scope of employment.”). Alano’s
position as a teacher and the availability of the practice
rooms merely provided access to his students, just as
any teacher’s position provides him or her with access to
a large number of students. To hold a school district
vicariously liable for a teacher’s misconduct in such
circumstances would require holding a school district
liable for every instance of such misconduct occurring
on school grounds or because the relationship originated
at the school. Cf. Metro. Sch. Dist. Perry Twp., 128 F.3d at
1029-30 (“[I]n virtually every case in which a teacher
harasses, seduces, or sexually abuses a student, the
teacher’s status as a teacher often enables the teacher
to abuse the student . . . .” (quotations omitted)).
No. 08-1205 31
The Hansens produced no evidence that Alano’s duties
as a music teacher involved physical contact with a
student or were otherwise sufficiently related to his
misconduct. Consequently, Alano’s acts did not fall
within the scope of his employment as a matter of law, and
the district court properly granted summary judgment
in favor of the school district on the issue of respondeat
superior.
3. Non-delegable Duty
Lastly, the Hansens argued that HSSC owed C.H. a non-
delegable duty under Indiana law and should be liable
for Alano’s misconduct, even if it was outside the scope
of his employment. Indiana courts, however, have consis-
tently refused to impose a non-delegable duty upon a
school for the safe-keeping of its students, recognizing that
schools “are not intended to be insurers of the safety of
their pupils, nor are they strictly liable for any injuries
that may occur to them.” Miller v. Griesel, 308 N.E.2d 701,
706 (Ind. 1974); see also Mangold ex rel. Mangold v. Ind. Dep’t
of Natural Res., 756 N.E.2d 970, 974 (Ind. 2001). Rather,
schools and school personnel have a duty “to exercise
ordinary and reasonable care for the safety of the children
under their authority.” Miller, 308 N.E.2d at 706; see also
Beckett v. Clinton Prairie Sch. Corp., 504 N.E.2d 552, 554
(Ind. 1987) (“[T]he appropriate standard is whether a
defendant exercised his duty with the level of care of an
ordinary prudent person under the same or similar cir-
cumstances.”). The Indiana Supreme Court stated that an
“approach that focuses on rearticulating that duty based
upon a given set of facts is misplaced in our view because
32 No. 08-1205
to do so presupposes that an issue which is thought to
be settled must be revisited each time a party frames the
duty issue a little differently.” Mangold, 756 N.E.2d at 974.
Consequently, we find that well-settled Indiana law
does not impose a non-delegable duty on HSSC for the
safekeeping of its students, and the school district is not
liable for Alano’s misconduct under such a duty.
D. The Hansens’ § 1983 Claim Against HSSC
We should also briefly address the Hansens’ § 1983 claim
against HSSC, although the Hansens did not appeal the
dismissal of this claim. The district court below held that
“the § 1983 claim against the School must be dismissed
because Title IX provides the exclusive remedy for the
federal claims.” Hansen v. Bd. of Trs. of Hamilton Se. Sch.
Corp., No. 1:05-cv-670, 2007 WL 3091580, at *4 (S.D. Ind.
Oct. 19, 2007) (citing Doe v. Smith, 470 F.3d 331, 339 (7th
Cir. 2006)).
While this ruling is correct under current precedent, the
Supreme Court of the United States recently heard oral
argument in a case questioning whether Title IX super-
sedes § 1983. Fitzgerald v. Barnstable Sch. Comm., 504 F.3d
165 (1st Cir. 2007), cert. granted 76 U.S.L.W. 3485 (U.S. June
9, 2008) (No. 07-1125) (argued Dec. 2, 2008). However, even
if the Supreme Court determines that a Title IX claim does
not preclude a claim under § 1983, the Hansens’ claim
against HSSC still fails.
To prevail on a § 1983 claim for damages against a local
government, a plaintiff must demonstrate that the alleg-
No. 08-1205 33
edly illegal action implemented an official policy or
custom adopted by the governmental body. See Monell v.
Dep’t of Soc. Servs., 436 U.S. 658, 690-91 (1978). Monell
expressly rejects governmental liability based on an em-
ployee’s misconduct under the doctrine of respondeat
superior. Id. at 691. The Hansens have not alleged—nor
could they do so in good faith—that HSSC has a policy or
custom favoring sexual abuse or discrimination of its
students. Therefore, HSSC cannot be liable for Alano’s
misconduct under § 1983, and the district court’s dis-
missal was proper.
III. C ONCLUSION
The Hansens failed to demonstrate a genuine issue as
to whether HSSC had actual knowledge of Alano’s miscon-
duct for their Title IX claim. After dismissing the Title IX
claim, the district court properly exercised supplemental
jurisdiction over the Hansens’ state claims. The district
court did not err by granting summary judgment against
the Hansens on each of those claims. The Hansens did not
establish a genuine issue as to whether HSSC knew or
should have known of Alano’s misconduct, nor whether
the school district acted negligently in light of any knowl-
edge it may have had. Further, Alano’s misconduct was
outside the scope of his employment as a matter of law.
Therefore, we AFFIRM the district court’s decision granting
summary judgment in favor of HSSC on all claims
against it.
12-23-08