Madison Power v. Gilbert Public Schools , 454 F. App'x 556 ( 2011 )

FILED
NOT FOR PUBLICATION OCT 14 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MADISON POWER, a minor, by and No. 10-15149
through Kelly and Lisa Power, her parents
and guardians, D.C. No. 2:07-cv-02584-JAT
Plaintiff - Appellant,
MEMORANDUM *
v.
GILBERT PUBLIC SCHOOLS, an
Arizona political entity; CANDICE
GONZALES, wife and in her individual
and official capacity as girls basketball
coach of Mesquite High School; JOSH
GONZALES, husband; BRADLEY K.
BARRETT, husband and Dr. in his official
and individual capacity as superintendent
of Gilbert Public Schools; BRADLEY K.
BARRETT, Mrs., wife; DAVID
ALLISON, husband, in his official and
individual capacity as assistant
superintendent of Gilbert Public Schools;
DAVID ALLISON, Mrs., wife; DOMINIC
MARCHIANDO, husband and in his
official and individual capacity as
principal of Mesquite High School;
DOMINIC MARCHIANDO, Mrs., wife,
Defendants - Appellees.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Appeal from the United States District Court
for the District of Arizona
James A. Teilborg, District Judge, Presiding
Argued and Submitted April 14, 2011
San Francisco, California
Before: THOMAS and RAWLINSON, Circuit Judges, and CARNEY, District
Judge.**
Plaintiff-Appellant Madison Power appeals the district court’s order granting
summary judgment in favor of Defendants-Appellees Gilbert Unified School
District (“Gilbert Public Schools”), Dr. Bradley Barrett, the superintendent of
Gilbert Public Schools, Dr. David Allison, the assistant superintendent, and Ms.
Candice Gonzales (collectively “Appellees”), in Power’s action for sex
discrimination. Power alleges that while she was a member of the Mesquite High
School varsity girls’ basketball team, her assistant coach and Gonzales’ husband,
Mr. Josh Gonzales, made inappropriate sexual remarks to her and several other
girls. Power alleges that after she reported Mr. Gonzales’ remarks to the Mesquite
High School administration and the Gilbert Public Schools administration, Ms.
Gonzales, Mr. Gonzales’ wife and the head coach of the varsity basketball team,
retaliated against her and that the other members of the varsity basketball team
**
The Honorable Cormac J. Carney, United States District Judge for the
Central District of California, sitting by designation.
2
harassed her. Power brought claims of intentional sex discrimination against
Gilbert Public Schools pursuant to Title IX of the Educational Amendments of
1972, 20 U.S.C. § 1681(a) (2006), and against the individual defendants pursuant
to 42 U.S.C. § 1983. We review the district court’s grant of summary judgment de
novo, Ramirez v. City of Buena Park, 560 F.3d 1012, 1019 (9th Cir. 2009), and we
may affirm the district court’s grant of summary judgment on any ground
supported by the record, Cmty. Bank of Ariz. v. G.V.M. Trust, 366 F.3d 982, 984
(9th Cir. 2004). We affirm.
The district court properly granted summary judgment in favor of Gilbert
Public Schools on Power’s Title IX claim for sex discrimination because Power did
not raise a genuine issue of material fact regarding whether Gilbert Public Schools
responded to her complaints about Ms. Gonzales’ conduct or her peers’ harassment
with deliberate indifference. See Davis Next Friend LaShonda D. v. Monroe Cnty.
Bd. of Educ., 526 U.S. 629, 633 (1999) (student-on-student sexual harassment);
Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290–91 (1998) (teacher-on-
student sexual harassment). In order to show that Gilbert Public Schools
responded to Power’s complaints with deliberate indifference, Power must show
that the response was “clearly unreasonable in light of the known circumstances.”
Davis, 526 U.S. at 648. Power did not present any such evidence. In fact, the
3
record shows that Gilbert Public Schools officials timely and thoroughly
investigated and responded to each of Power’s complaints about Ms. Gonzales and
several members of the varsity girls’ basketball team.
Summary judgment on Power’s § 1983 claim based on the Equal Protection
Clause was also warranted. Although retaliating against a person for reporting
sexual harassment is arguably a violation of the Equal Protection Clause, see
Alaska v. EEOC, 564 F.3d 1062, 1069 (9th Cir. 2009) (en banc), Power did not
present any evidence to raise a genuine issue of material fact regarding whether
Ms. Gonzales, Dr. Barrett, and Dr. Allison retaliated or otherwise intentionally
discriminated against her. Power only presented evidence that Ms. Gonzales made
a few snide remarks to her or about her; she presented no evidence that Ms.
Gonzales took any adverse action against her or treated her any differently than
any other member of the varsity basketball team. See Hardage v. CBS
Broadcasting, Inc., 427 F.3d 1177, 1189 (9th Cir. 2005) (explaining that snide
remarks and thinly veiled threats do not amount to an adverse action for purposes
of a Title VII retaliation claim). Power also did not present sufficient evidence to
create a triable issue regarding whether Ms. Gonzales encouraged or directed the
members of the varsity basketball team to harass her, or that Dr. Barrett or Dr.
Allison retaliated or otherwise intentionally discriminated against her on the basis
4
of sex. See Jackson v. City of Bremerton, 268 F.3d 646, 653 (9th Cir. 2001)
(holding that for a supervisor to be liable in his individual capacity under § 1983
the plaintiff must show that he “was personally involved in the constitutional
deprivation or a sufficient causal connection exists between the supervisor’s
unlawful conduct and the constitutional violation”); T.E. v. Grindle, 599 F.3d 583,
588 (7th Cir. 2010) (concluding that where underlying constitutional violation
requires showing of intentional discrimination, plaintiffs must also show that
supervisor possessed the requisite discriminatory intent) (citing Ashcroft v. Iqbal,
129 S. Ct. 1937, 1948–49 (2009).
Finally, the district court properly granted summary judgment in favor of Dr.
Barrett, Dr. Allison, and Ms. Gonzales on Power’s § 1983 claim based on the First
Amendment because Power waived her First Amendment claim by failing to raise
it in opposition to the Appellees’ motion for summary judgment. Jenkins v. Cnty.
of Riverside, 398 F.3d 1093, 1095 n.4 (9th Cir. 2005).
AFFIRMED.
5