DocketNumber： 95-50791
Judges： Garwood, Barksdale, Dennis
Filed Date： 1/8/1997
Status： Precedential
Modified Date： 11/4/2024
This interlocutory appeal by the Canutillo Independent School District turns on whether, under Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681 et seq., a school district is strictly liable for its teacher’s sexual abuse of a student; and, if not, whether another teacher’s being told about the abuse is sufficient notice to the school district for possible liability under some other standard. We REVERSE the denial of the school district’s motion for judgment as a matter of law on the Title IX claim and REMAND.
I.
The school district is located in Canutillo, Texas, and receives federal financial assistance. At the Canutillo Elementary School, Rosemarie Leija was assigned in 1989 to the second-grade homeroom class of Pam Mendoza and the physical education/health class of Tony Perales.
Perales’ classes were a part of the daily curriculum. Once a week, he taught health, which consisted primarily of showing movies to his students in a darkened classroom. Throughout the 1989-90 school year, Perales sexually molested Leija during these showings. One of Leija’s classmates testified that, during this same time period, she was also molested in a similar manner by Perales.
• In early 1990, Leija and the other student told Mendoza about some of Perales’ actions. Mendoza spoke with each of the girls individually and told them to avoid Perales. Mendoza talked to Perales about the accusations, but she did not advise anyone else, such as the superintendent or principal; Later that spring, Leija told her mother that Perales had been touching her. Leija’s mother discussed the matter with Mendoza at one of the regularly scheduled parent-teacher conferences, and Mendoza told her that she would look into the matter. Leija’s mother did not discuss this with anyone other than her husband. According to Leija, Mendoza confronted her after the conference and threatened her with “trouble” if she was lying about her accusation.
Afterwards, Leija did not speak with anyone. about the abuse until she began counseling sessions in 1993. Her parents, as next friends, then filed this action against the school district (CISD) and Perales under Title IX and under 42 U.S.C. § 1983. Summary judgment was granted CISD on the § 1983 claim.
During the trial of the Title IX claim, at the close both of Leija’s case and of all the evidence,- CISD moved for judgment as a matter of law on the basis that, inter alia, Leya had not produced evidence of discriminatory intent on its part. Both motions were denied, and the special interrogatories given the jury premised CISD’s liability instead on a “negligent agent” theory:
Did Pam Mendoza, as an agent of [CISD], know or, in the exercise of reasonable care, should she have known, of the sexual harassment or abuse by Tony Perales against Rosemarie Leija?
Did Pam Mendoza take the steps a reasonable person would have taken under the same or similar circumstances to halt the*396 sexual harassment or abuse by Tony Pe-rales against Rosemarie Leija?
The jury returned a verdict for Leija, awarding $1.4 million in compensatory damages.
Post-verdict, CISD again sought judgment as a matter of law and moved, in the alternative, for remittitur. Among other things, it again maintained that Leija had not shown intentional discrimination on its part. In denying the motion, the. district court changed course and held, in a most comprehensive opinion, that its instructions on liability were unnecessary because CISD was instead strictly liable for Perales’ actions. 887 F.Supp. 947, 953 (W.D.Tex.1995). However, because the court was concerned that Title IX strict liability might expose school districts to “potential insolvency”, it held also that damages should be limited to expenses for medical and mental health treatment and for special education. Id. at 956. And, because the damages special interrogatory was not so limited, the court treated CISD’s re-mittitur motion as one for a new trial on damages and granted it. Id. at 957. The court later certified its order under 28 U.S.C. § 1292(b) for immediate appeal, and this court granted CISD leave to do so.
II.
Although CISD presents several points, this interlocutory appeal turns on whether the liability standard under Title IX for teacher-student sexual abuse is strict liability; and, if it is not, whether the notice to Mendoza, a teacher, is sufficient to hold the school district liable. In so deciding, we review de novo the denial of CISD’s motion for judgment as a matter of law, using the same standards as those applied by the district court. E.g., Conkling v. Turner, 18 F.3d 1285, 1300-01 (5th Cir.1994). Such judgment is appropriate if, after viewing the record in the light most favorable to the nonmovant, there is no “legally sufficient evi-dentiary basis” for a reasonable jury to have found for the prevailing party. Id. (quoting Fed.R.Civ.P. 50(a)).
Title IX provides in relevant part: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance_” 20 U.S.C. § 1681(a). There is an implied right of action under Title IX in favor of victims of discrimination on the basis of sex, Cannon v. University of Chicago, 441 U.S. 677, 709, 99 S.Ct. 1946, 1964, 60 L.Ed.2d 560 (1979), and monetary damages may be awarded for its intentional violation, Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60, 74-76, 112 S.Ct. 1028, 1037-38, 117 L.Ed.2d 208 (1992).
For purposes of this appeal, we assume that discrimination “on the basis of sex” includes sexual abuse of a student by a teacher. See id. at 75, 112 S.Ct. at 1037-38. CISD, unlike the amici does not contend otherwise. See Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 477 (5th Cir.) (en banc) (Jones, J., dissenting) (citing Franklin for proposition that school accepting federal funds “renderfs] itself potentially liable” to Title IX claims for teacher-student sexual harassment), cert. denied sub nom. Lankford v. Doe, — U.S. —, 115 S.Ct. 70, 130 L.Ed.2d 25 (1994). But see Franklin, 503 U.S. at 62-63, 112 S.Ct. at 1030-31 (limiting question presented to “whether the implied right of action under Title IX ... supports a claim for monetary damages”); Rowinsky v. Bryan Indep. Sch. Dist., 80 F.3d 1006, 1011 n. 11 (5th Cir.1996) (“[A]ny language in Franklin regarding teacher-student sexual harassment is pure dictum.”), cert. denied, — U.S. —, 117 S.Ct. 165, 136 L.Ed.2d 108 (1996).
A.
The district court was the first to adopt strict liability as the standard for school district Title IX liability for teacher-student sexual abuse. Three other standards have been utilized. We summarize them briefly before addressing, and rejecting, strict liability.
1.
The three approaches generally followed are those used for Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d et seq.; for Title VII of that Act, 42 U.S.C.
a.
CISD urges that Leija must prove that the school district itself engaged in intentional sex-based discrimination. Its basis is the statement in Cannon that Title IX was “patterned” after Title VI. Cannon, 441 U.S. at 694, 99 S.Ct. at 1956. As the Court noted, “the two statutes use identical language to describe the benefited class”, id. at 694-95, 99 S.Ct. at 1957. Title VI provides: “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 42 U.S.C. § 2000d. Both statutes also utilize a similar “administrative mechanism” to terminate financial assistance to recipients “engaged in prohibited discrimination”. Cannon, 441 U.S. at 695-96, 99 S.Ct. at 1957.
Moreover, our court recently described Title VI as the “model” for Title IX. Rowinsky, 80 F.3d at 1012 n. 14. And, in Chance v. Rice University, 984 F.2d 151, 153 (5th Cir.), reh’g denied, 989 F.2d 179 (5th Cir.1993), a district court’s application of Title VI standards to a Title IX claim was not held erroneous. Chance, however, involved a claim of discrimination in the promotion and compensation of professors at a university, not teacher-student sexual abuse; furthermore, an imputed liability standard was not at issue. 984 F.2d at 152.
To receive compensatory damages, a Title VI plaintiff must prove discriminatory intent. Guardians Ass’n v. Civil Serv. Comm’n of the City of New York, 463 U.S. 582, 584, 103 S.Ct. 3221, 3223, 77 L.Ed.2d 866 (1983); id. at 608 n. 1, 103 S.Ct. at 3235 n. 1 (Powell, J., concurring); see Franklin, 503 U.S. at 70, 112 S.Ct. at 1035. Consequently, CISD asserts that it cannot be liable absent proof that it actually participated in Perales’ discriminatory conduct. See, e.g., Seamons v. Snow, 864 F.Supp. 1111, 1117 (D.Utah 1994), aff'd in part and rev’d in part, 84 F.3d 1226 (10th Cir.1996); R.L.R. v. Prague Pub. Sch. Dist. I-103, 838 F.Supp. 1526, 1534 (W.D.Okla.1993).
b.
Leija also disclaims the district court’s strict liability/limited damages approach. Leija asserts that Title VII liability principles should govern instead. The basis for this approach is the Franklin Court’s reliance on Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986), a Title VII case, in stating that
[Unquestionably, Title IX placed on the Gwinnett County Schools the duty not to discriminate on the basis of sex, and “when a supervisor sexually harasses a subordinate because of the subordinate’s sex, that supervisor ‘diseriminate[s]’ on the basis of sex.” Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 64, 106 S.Ct. 2399, 2404, 91 L.Ed.2d 49 (1986). We believe the same rule should apply when a teacher sexually harasses and abuses a student.
Franklin, 503 U.S. at 75, 112 S.Ct. at 1037.
Under Title VII, the standard for an employer’s liability for an employee’s conduct depends on the type of sexual harassment at issue. Courts have held an employer strictly liable for “quid pro quo ” harassment (receipt of a benefit conditioned on submission to sexual conduct). See Meritor, 477 U.S. at 70-71, 106 S.Ct. at 2407-08; Henson v. City of Dundee, 682 F.2d 897, 910 (11th Cir.1982). However, for “hostile environment” harassment (sexual conduct which, inter alia, creates an intimidating working environment), an employer is liable only if it knew, or should have known, of that conduct and did not take appropriate remedial action. Nichols v. Frank, 42 F.3d 503, 508 (9th Cir.1994); Hall v. Gus Constr. Co., 842 F.2d 1010, 1016 (8th Cir.1988).
The district court instructed the jury only on a hostile environment theory; it refused to instruct on a quid pro quo theory. We agree that the abuse in issue is the former, not latter, type. Under these principles for hostile environment claims, CISD could be hable if, inter alia, it had actual or constructive notice of Perales’ actions. See Kinman v. Omaha Pub. Sch. Dist., 94 F.3d 463, 469 (8th Cir.1996); Preston v. Commonwealth of
e.
As a variation on respondeat superi- or, the Restatement (Second) of Agency § 219 provides a third possible liability standard: a master is not liable for his servant’s torts committed outside the scope of employment unless “the master was negligent or reckless”. Restatement (Second) of Agency § 219(2)(b) (1957). Under this standard, and because the sexual abuse was not within the scope of Perales’ employment as a teacher, CISD would be liable for his actions only if it failed to use reasonable care in preventing, or failing to remedy, a problem that it knew, or should have known, existed. Hirschfeld v. New Mexico Corrections Dep’t, 916 F.2d 572, 577 (10th Cir.1990) (interpreting § 219 in Title VII ease); see Rosa H. v. San Elizario Indep. Sch. Dist., 887 F.Supp. 140, 142-43 (W.D.Tex.1995); Hastings v. Hancock, 842 F.Supp. 1315, 1319 (D.Kan.1993).
2.
Rejecting the foregoing approaches, the district court adopted strict liability as the Title IX ■liability standard for teacher-student sexual abuse. 887 F.Supp. at 954. As noted, it did not do so until after the jury rendered its extremely large compensatory damages verdict. Id. at 948. No court had previously adopted this approach in imputing liability to a school district for a Title IX hostile environment claim. Moreover, subsequent to the district court rendering its opinion, only one other court has followed suit. Bolon v. Rolla Pub. Sch., 917 F.Supp. 1423, 1427-28 (E.D.Mo.1996). That court also certified its order for interlocutory appeal. Id. at 1433-34.
In the case at hand, the district court opined that a student would have difficulty meeting any of the usual liability standards because most sexual abuse “occurs or at least is attempted under cover of secrecy”; and that, “unless the acts of the employees of the district are fully and strictly imputed to the district, Title IX becomes potentially inoperative.” 887 F.Supp. at 953. Because of this proof problem, and because “the risk of harm is better placed on a school district than on a young student”, the court held CISD strictly liable for Perales’ sexual abuse of Leija. Id. at 955. For the following reasons, we reach the opposite conclusion.
Our court explained recently that “precedent strongly suggests” that Congress enacted Title IX pursuant to its Spending Clause power, U.S. Const. art. I, § 8, cl. 1, and not § 5 of the Fourteenth Amendment. Rowinsky, 80 F.3d at 1012 n. 14. Although the Franklin Court had earlier refused to decide this issue, Franklin, 503 U.S. at 75 n. 8, 112 S.Ct. at 1037-38 n. 8, our court gave cogent reasons for interpreting Title IX in the same way Title VI is interpreted, as Spending Clause legislation, including the identical language of the two statutes, the fact that Title IX was modeled after Title VI, and the Supreme Court’s traditional hesitance to “attribute] Congressional intent to act under its authority to enforce the Fourteenth Amendment.” Rowinsky, 80 F.3d at 1012 n. 14 (citing Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981)).
In Pennhurst, 451 U.S. at 17, 101 S.Ct. at 1540, the Court described the typical spending power statute as a contract: “[I]n return for federal funds, the States agree to comply with federally imposed conditions”. But, Congress must be clear and “unambiguous[ ]” about any conditions or obligations it is imposing on the recipient of such funds. Id. As the Pennhurst Court explained, “By insisting that Congress speak with a clear voice, we enable the States to exercise their choice knowingly, cognizant of the consequences of their participation.” Id. Thus, in Pennhurst, a general statement of legislative findings characterized as a “bill of rights” in the statute was insufficient to impose enforceable obligations on participants in a Spending Clause program. Id. at 18-27, 101 S.Ct. at 1540-45.
Assuming, arguendo, that Title IX is a Spending Clause statute, Congress must be unambiguous in expressing to school districts the conditions it has attached to the receipt of federal funds. Nothing in the statute, however, places a school district on notice that it will be strictly liable for its teachers’
It would be difficult to conclude that Title IX, which contains no whisper of strict liability, creates this enforceable obligation, whereas the provision at issue in Pennhurst, which was part of the text of the statute, did not. Pennhurst, 451 U.S. at 13-14, 18-27, 101 S.Ct. at 1537-38, 1540-45. And, if strict liability were the standard, it cannot be that a school district that chooses to accept federal monies can be said to have made a “knowing[ ]” choice, “cognizant of the consequences of [its] participation”, when the statute governing the receipt of those funds is completely silent about a financially devastating consequence of that participation. Simply put, strict liability is not part of the Title IX contract.
In addition, there is no sound policy reason to hold a school district financially accountable, through strict liability, for the criminal acts of its teachers. As noted, in recasting an argument frequently made in support of imposing strict liability on product manufacturers, see, e.g., Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 27 Cal.Rptr. 697, 701, 377 P.2d 897, 901 (1963); Escola v. Coca Cola Bottling Co., 24 Cal.2d 453, 150 P.2d 436, 440-41 (1944) (Traynor, J., concurring), the district court explained that “the risk of harm is better placed on a school district than on a young student.” 887 F.Supp. at 955.
But, along this same line, one reason courts and state legislatures have so allocated risk to product manufacturers is because they are better able to spread liability costs among consumers by raising the price of their products. E.g., Escola, 150 P.2d at 441 (Traynor, J., concurring). A school district should not be required to perform a comparable task, even if it could. A school district’s “products” are its students; there is no “price” to raise. Instead, public schools are funded typically by a combination of federal and state funds and property taxes levied by the local governing body. We refuse to impose the necessity of a “Title IX assessment” in order to spread the risk of million-dollar verdicts. As horrible a crime as child abuse is, we do not live in a risk-free society; it contorts “public policy” to suggest that communities should be held financially responsible in this manner (strict liability) for such criminal acts of teachers.
Continuing with this product manufacturer analogy, another reason behind product manufacturer strict liability is that the manufacturer is in a better position than a consumer to search for and discover defects in design or manufacture. See, e.g., Escola, 150 P.2d at 440-41 (Traynor, J., concurring). But, there is no product for a school district to design, test or inspect. Again, its “products” are its students; they are not the offending item. And, just as is a product manufacturer, a school district is limited in what it can prevent through careful screening and monitoring of its employees, both before and after hiring them. Human beings are inherently unpredictable, making it impossible for a school district to discover potential human “defects” the way, for example, that a manufacturer, for its products, can design against defects, or inspect for them on an assembly line. In addition, the Constitution and state and federal law limit the extent to which a school district can examine, inquire about, or investigate its employees and their backgrounds and characteristics.
Likewise, as the district court noted, teacher-student sexual abuse is conducted in secret, making it difficult, if not impossible, to detect without being told about it. Obviously, immediate and adequate notice is one of the best means of stopping abuse and removing (and convicting) the abuser. In fact, as a matter of public policy, it may well be that requiring knowledge by the school district, often acquired by being told about such abuse, as a condition to recovery of damages will result in much quicker and greater protection not only to the person being abused and- providing notice, or on whose behalf it is given, but will also better protect or otherwise benefit those who may then be undergoing abuse from that, or an
The district court suggests that strict liability will “heighten[] the vigilance of the district and cause[ ] employees at all levels of the system to be alert to the problem.” 887 F.Supp. at 955. It is difficult to believe, following lengthy and nationally publicized child abuse trials, the otherwise heightened awareness of child abuse, and the increased filings of Title IX actions for student abuse, that any school district or teacher is not already extremely alert to the problem of teacher-student sexual abuse. But in any event, as explained, such vigilance, alertness, and awareness are insufficient to shield a school district from potential financial ruin under the district court’s strict liability approach, even with the limited damages it couples to that standard. Strict liability converts the school district from being the educator of children into their insurer as well. And, if it is their insurer, it is most arguable that its role as educator — needed now more than ever — will suffer, and suffer most greatly-
It is true that the Supreme Court has found an implied private cause of action in Title IX, even though the statute is silent. Cannon, 441 U.S. at 709, 99 S.Ct. at 1964. And, it is also true that the Court discerned an intent on the part of Congress to provide all appropriate remedies for a Title IX violation, although the statute makes no mention of them. Franklin, 503 U.S. at 71-75, 112 S.Ct. at 1035-38. But, strict liability is a step too far; we will not take it.
B.
As discussed infra, and based on the facts in this case (especially because the only notice was to another teacher), it is not necessary now to move beyond our rejection of strict liability and adopt a liability standard for Title IX cases of the type at hand. Lei-ja’s Title IX claim fails under each of the three types commonly applied.
1.
Of course, if the appropriate standard were analogous to Title VI, even notice, absent direct involvement by the school district, would not impute liability to the district. See R.L.R., 838 F.Supp. at 1534. It is undisputed that there was no such involvement by CISD. Therefore, the Title IX claim would fail under this standard. We turn to how it would fare under a liability standard akin to Title VII or § 219 of the Restatement (Second) of Agency. (Needless to say, the brevity of this Title VI analogy, especially as compared to the length of the discussion that follows, should not be understood to mean that, for purposes of this opinion, we view it as having less validity than those other two standards.)
2.
Under the standard for Title VII or § 219, a school district would be liable if it knew, or should have known, of the teacher’s conduct and failed to take remedial action. See DeAngelis v. El Paso Mun. Police Officers Ass’n, 51 F.3d 591, 593 (5th Cir.) (Title VII), cert. denied, — U.S. —, 116 S.Ct. 473, 133 L.Ed.2d 403 (1995); Hirschfeld, 916 F.2d at 577 (§ 219). Restated, under either standard, actual or constructive notice, inter alia, would constitute a sufficient basis for Title IX liability. Both CISD and Leija agree on this point.
a.
Therefore, under either standard, the question then becomes: To whom must such notice be given? CISD asserts that, at the least, a management-level employee must have notice of the teacher’s actions. Leija counters that, as long as the student reports the actions to someone “appropriate” to receive the complaint, the notice element has been satisfied.
In the Title VII context, our court has explained that an employer has actual notice of harassment when an employee complains to “higher management”. Waltman v. International Paper Co., 875 F.2d 468, 478 (5th Cir.1989); see also Nash v. Electrospace Sys., Inc., 9 F.3d 401, 404 (5th Cir.1993) (discussing failure of plaintiff to complain to
Other circuits have adopted a similar definition for Title VII actual notice. Nichols, 42 F.3d at 508 (“The proper analysis for employer liability in hostile environment cases is what management-level employees knew or should have known....”); Hall, 842 F.2d at 1015-16 (explaining that employer had actual notice because foreman was told of harassment); Katz v. Dole, 709 F.2d 251, 255-56 (4th Cir.1983) (describing personnel that put employer on notice of harassment as “supervisory”); Henson, 682 F.2d at 905 (“The employee can demonstrate that the employer knew of the harassment by showing that she complained to higher manage-ment_”).
Likewise, under § 219, courts require that a plaintiff notify management-level employees before an employer can be said to have actual knowledge. See Hirschfeld, 916 F.2d at 577 (citing EEOC v. Hacienda Hotel, 881 F.2d 1504, 1516 (9th Cir.1989)).
There is no reason to define actual notice differently in the Title IX context. In fact, the one Title VII case cited by Leija to support her “appropriate employee” contention described the personnel that the plaintiff notified as “supervisory”. Llewellyn v. Celanese Corp., 693 F.Supp. 369, 380 (W.D.N.C.1988). Moreover, it makes little sense, on the one hand, to make liability contingent, inter alia, on whether the employer (school district) takes “prompt remedial action”, see DeAngelis, 51 F.3d at 593, yet, on the other hand, define “employer” so broadly as to include personnel who have no authority to take such action. Therefore, before the school district can be held liable under Title IX for a teacher’s hostile environment sexual abuse, someone in a management-level position must be advised about (put on notice of) that conduct, and that person must fail to take remedial action.
For purposes of this appeal, we need not decide, and thus leave for another day, the question of whether the appropriate (or lowest level) management-level person to be notified is a Title IX coordinator, vice-principal, principal, superintendent, or school board member. But cf. Rowinsky, 80 F.3d at 1021 (Dennis, J., dissenting) (student-student sexual harassment is actionable under Title IX if “board had knowledge of the harassment and failed to take appropriate corrective action”) (emphasis added). Obviously, that question is strongly linked to the facts and circumstances, including applicable state law, of each case. It is clear, however, that, to even begin to qualify as “management-level”, a person must have some authority over employees, including, perhaps, the power to hire, fire, or discipline. This condition stems from case law and the language of Title VII itself.
Title VII defines an “employer” to include all “agent[s]”, but not all “employees”, of the employer. 42 U.S.C. § 2000e(b). The Supreme Court focused on this distinction in Meritor Savings Bank, 477 U.S. at 72, 106 S.Ct. at 2408: “Congress’ decision to define ‘employer’ to include ‘any agent’ of an employer ... surely evinces an intent to place some limits on the acts of employees for which employers under Title VII are to be held responsible.” Our court is well aware of this distinction. See Moham v. Steego Corp., 3 F.3d 873, 876 (5th Cir.1993), cert. denied, 510 U.S. 1197, 114 S.Ct. 1307, 127 L.Ed.2d 658 (1994).
Courts have interpreted the term “agent” to mean someone who “serves in a supervisory position- and exercises significant control over ... hiring, firing, or conditions of employment”. Sauers v. Salt Lake County, 1 F.3d 1122, 1125 (10th Cir.1993) (quoting Paroline v. Unisys Corp., 879 F.2d 100, 104 (4th Cir.1989), vacated in part, 900 F.2d 27 (4th Cir.1990); see also Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796, 803 (6th Cir.1994). In fact, the Fourth Circuit has explained, “[The agent] need not have ultimate authority to hire or fire to qualify as an employer, as long as he or she has significant input into
This definition of “employer” (including agents) is synonymous with the understanding our court had of “employer” in DeAngelis v. El Paso Municipal Police Officers Ass’n, when it listed as one of the elements of a Title VII plaintiff’s prima facie ease for hostile environment harassment that “the employer knew or should have known of the harassment and failed to take prompt remedial action”. DeAngelis, 51 F.3d at 593. Accordingly, the term “higher-management personnel” includes only those individuals with some degree of job-related authority over other employees.
Thus, in Nash v. Electrospace System, Inc., our court explained that an employer did not know, and could not have known, of the harassment “until [the plaintiff] complained to those with authority to address the problem ”. Nash, 9 F.3d at 404 (emphasis added). And, in Hall v. Gus Construction Co., the Eighth Circuit found that a construction company had actual notice of a hostile environment when a foreman had witnessed and received complaints about the sexually harassing conduct. Hall, 842 F.2d at 1016.
In sum, if Title VII or § 219 principles are applicable for Title IX liability, the school district does not have actual knowledge of hostile environment sexual harassment until someone with authority to take remedial action is notified. Again, it may well be that that someone must be a member of the school board.
b.
In any event, it is clear that Mendoza, the teacher put on notice, did not have the requisite authority. At the elementary school, she served only in the capacity of a classroom teacher. Mendoza did not serve on the school board or as a superintendent, assistant superintendent, principal, or assistant-principal. And, the CISD student handbook designated the assistant superintendent, not Mendoza, as the CISD Title IX coordinator (and the person to receive student complaints). Mendoza simply had no job-related authority over Perales or, for that matter, any other teacher. As a final indicator, we note that, when asked at trial whether she was an appropriate person to receive a student’s complaint of sexual abuse and harassment, Mendoza invoked her Fifth Amendment rights.
c.
Accordingly, we apply these assumptions and conclusions to this record to determine whether the school district had the requisite actual or constructive notice. As stated, we hold that it did not.
Leija was not in Perales’ gym/health class after the 1989-90 school year; and, in early 1991, during Leija’s third grade year, she and her family left Canutillo. Perales, however, continued to sexually abuse his students. In October 1990, a parent complained to the assistant-principal at the elementary school that Perales had sexually molested her daughter. The allegation was investigated, and Perales was warned about his interaction with the students. In February 1991, four more girls complained of sexual abuse, this time to the principal, who promptly reported the incidents to the CISD superintendent. CISD immediately suspended Perales. Law enforcement officials investigated the matter, and Perales was subsequently indicted and convicted of sexual abuse of a child, whereupon CISD terminated him.
Therefore, concerning the time frame during which the sexual abuse of Leija occurred, the record reflects the following: neither Le-ija nor her mother told anyone at the school besides Mendoza (a teacher) what Perales was doing; Mendoza was not at management-level—she did not have any authority over Perales or other authority, including to take the requisite remedial action, so that the notice to her did not constitute notice to CISD; no member of the school board, the superintendent, the assistant superintendent, the principal, the assistant-principal or any other management-level personnel were notified of Perales’ actions; and, there was no evidence that his conduct was then so pervasive that a reasonable juror could conclude that CISD “should have known” of the abuse. On these facts, CISD had neither actual nor
III.
For the foregoing reasons, the Title IX claim fails. (Accordingly, we do not address the damages issues.) Therefore,' we REVERSE the denial of CISD’s motion for judgment as a matter of law on that claim, and REMAND for entry of judgment in favor of the school district.
REVERSED and REMANDED.