M. S. v. Susquehanna Twp Sch Dist

                                     PRECEDENTIAL

    UNITED STATES COURT OF APPEALS
         FOR THE THIRD CIRCUIT
              ____________

                   No. 19-2173
                  ____________

M.S., a minor, by and through her mother Paris Hall;
           PARIS HALL, individually,
                               Appellants

                         v.

SUSQUEHANNA TOWNSHIP SCHOOL DISTRICT;
         SHAWN A. SHARKEY
             ____________

  On Appeal from the United States District Court
      for the Middle District of Pennsylvania
          (D.C. Civil No. 1-13-cv-02718)
      District Judge: Honorable Yvette Kane
                  ____________

  Submitted Under Third Circuit L.A.R. 34.1(a):
                April 23, 2020

    Before: PORTER, RENDELL, and FISHER
                Circuit Judges.

              (Filed: August 5, 2020)
                  ____________
Dennis E. Boyle
Whiteford Taylor & Preston
1800 M Street, N.W.
Suite 450N
Washington, D.C. 20036
       Counsel for Appellant

Carl P. Beard
Elizabeth A. Benjamin
Beard Legal Group
3366 Lynnwood Drive
P.O. Box 1311
Altoona, PA 16603
       Counsel for Appellees

                       ____________

                OPINION OF THE COURT
                     ____________

PORTER, Circuit Judge.

       Shawn A. Sharkey, an assistant principal at
Susquehanna Township High School, had a sexual relationship
with M.S., a sixteen-year-old female student. M.S. sued the
School District alleging, in part, that it violated Title IX by
responding inadequately to Sharkey’s sexual misconduct. The
District Court granted summary judgment for the School
District. We will affirm.




                               2
                               I
                               A

       Shawn A. Sharkey began working as a special educator
and assistant principal at Susquehanna Township High School
in January 2013. He soon met M.S., a sixteen-year-old female
student, and they began a sexual relationship that lasted until
the end of March 2013.

        Weeks later, students began spreading rumors that M.S.
and Sharkey had carried on a sexual relationship. Because of
the commotion, the School District launched an investigation
into the rumors. The School District’s investigation was
conducted by another assistant principal, the principal, an
assistant superintendent, and the superintendent. It included
numerous interviews with M.S., Sharkey, other students, a
review of Sharkey’s telephone records, and an examination of
texts, emails, and photos on M.S.’s telephone and on Sharkey’s
district-issued telephone. M.S. and Sharkey steadfastly denied
the rumors.

       As a result of the investigation, the School District knew
that: (1) some students had spread rumors about M.S. and
Sharkey; (2) M.S. had a crush on Sharkey; (3) no student had
seen pictures or texts substantiating the rumors; (4) M.S.’s and
Sharkey’s phones lacked any evidence of wrongdoing; and (5)
M.S. and Sharkey denied the rumors. At this point, after
conferring with the School District’s attorney, the
superintendent ended the investigation.

       At the beginning of the next school year, the rumors
about M.S. and Sharkey resurfaced. This time, the School
District contacted the Susquehanna Township police and




                               3
placed Sharkey on administrative leave. Police detectives met
with M.S., who again denied having a sexual relationship with
Sharkey. The police informed her that they planned to get a
search warrant for her phone. The next day, September 19,
2013, M.S. and her parents met with the police at the local
station. There, for the first time, M.S. admitted to and provided
details about her relationship with Sharkey.

       On September 20, 2013, Sharkey was criminally
charged. On September 27, 2013, the School District informed
Sharkey that it intended to terminate his employment. Three
days later, the School District received a resignation letter from
Sharkey, which the School District accepted at its next board
meeting. On November 5, 2013, M.S. filed her complaint
against the School District.




                                4
                               B

        M.S.’s complaint named the School District and several
School District officials as defendants.1 Her complaint alleged
a hostile educational environment because of Sharkey’s sexual
harassment and students’ behavior2 in violation of Title IX,
violations of the Fourteenth Amendment, and state-law claims.
The District Court dismissed all but M.S.’s Title IX hostile-
educational-environment claim against the School District.

       The School District eventually moved for summary
judgment on M.S.’s Title IX claim. The Magistrate Judge
issued a Report and Recommendation suggesting that the
District Court grant summary judgment in the School District’s
favor. M.S. did not object to the Report and Recommendation.
The District Court adopted the Report and Recommendation
and entered summary judgment for the School District.


1
  Shawn Sharkey was also named as a defendant, but he is not
a party to this appeal. The District Court entered default
judgment against Sharkey and ordered him to pay $700,000 in
damages. See Judgment, M.S. v. Susquehanna Twp. Sch. Dist.,
No. 1:13-cv-02718-YK (M.D. Pa. Apr. 30, 2019), ECF No.
121.
2
  In her reply brief on appeal, M.S. first argued that the School
District’s deliberate indifference subjected her to further
harassment by other students. She forfeited the argument by
failing to raise it in her opening brief on appeal. See United
States v. Pelullo, 

 (3d Cir. 2005). But, even
if the issue were preserved and even if the students’ behavior
was Title IX harassment, the complained-of conduct occurred
after M.S. stopped attending Susquehanna Township High
School.




                               5
       M.S. filed a motion for reconsideration asking that the
District Court grant her leave to file objections to the Report
and Recommendation and reconsider its summary judgment
order. The District Court denied M.S.’s request to file untimely
objections because “the arguments presented by [M.S. in her
proposed objections] are unavailing and would not have altered
the decision reached by the Court.” App. 40. The District Court
then denied M.S.’s motion for reconsideration.

       M.S. timely appealed.3 Thus, we must decide whether
the District Court properly granted summary judgment to the
School District on M.S.’s Title IX hostile-educational-
environment claim.




3
  In her amended notice of appeal, M.S. appealed: (1) the
District Court’s two orders that dismissed all the claims against
the School District officials and all the claims—except for the
Title IX hostile-educational-environment claim—against the
School District; (2) the District Court’s order granting
summary judgment for the School District on her Title IX
claim; and (3) the District Court’s order denying her motion
for reconsideration. See JA 1. Yet, in her opening brief, M.S.
states that the order she appeals from is only the “Order
granting Summary Judgment” to the School District on the
Title IX hostile-educational-environment claim. Appellants’
Br. 1. Accordingly, she forfeited her challenges to the other
orders. See United States v. Peppers, 

 (3d
Cir. 2018) (citing Barna v. Bd. of Sch. Dirs. of Panther Valley
Sch. Dist., 

 (3d Cir. 2017) (noting that a party
forfeited an argument because he neither briefed nor argued it
on appeal)).




                               6
                               II

      The District Court had subject-matter jurisdiction under

. We have appellate jurisdiction under 

.

        The parties dispute whether we apply de novo or plain-
error review. Ordinarily, when a party fails to object to a report
and recommendation, “we review the District Court’s grant of
summary judgment for plain error.” Brightwell v. Lehman, 

 (3d Cir. 2011) (citation omitted). But, in some
cases, we will apply de novo review if the District Court
“elect[ed] to exercise its power to review a magistrate’s report
de novo.” Orie v. Dist. Att’y Allegheny Cnty., 

,
193 (3d Cir. 2019) (citation and alteration omitted). Regardless
of whether we conduct de novo or plain-error review, we apply
the summary judgment standard.4

        Summary judgment is appropriate if “the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). We view the evidence in the light most favorable to
the non-moving party. See Melrose, Inc. v. City of Pittsburgh,

 (3d Cir. 2010). A fact is material if—taken

4
  Before we decide whether to exercise our discretion, plain-
error review requires that “we find (1) an error, (2) that is
plain—i.e., clear and obvious—and (3) the error affected the
defendant’s substantial rights.” Forrest v. Parry, 

 (3d Cir. 2019) (citation omitted). To decide whether the
District Court’s grant of summary judgment was “error,” we
apply the summary judgment standard. See, e.g., Brightwell v.
Lehman, 

, 193–94 (3d Cir. 2011).




                                7
as true—it would affect the outcome of the case under
governing law. Anderson v. Liberty Lobby, 

(1986). And a factual dispute is genuine “if the evidence is such
that a reasonable jury could return a verdict for the nonmoving
party.” 

        Because the School District is entitled to judgment as a
matter of law, M.S.’s appeal would not survive either de novo
or plain-error review. We therefore assume without deciding
that de novo review applies. For the following reasons, we will
affirm the District Court’s order granting summary judgment.

                                 III

        Title IX of the Education Amendments of 1972 requires
that “[n]o person . . . shall, on the basis of sex, . . . be subjected
to discrimination under any education program or activity
receiving [f]ederal financial assistance.” 

(a).
Title IX is enforceable “through an implied private right of
action.” Gebser v. Lago Vista Indep. Sch. Dist., 

 (1998) (citing Cannon v. Univ. of Chicago, 

(1979)).

        Sexual harassment is a form of Title IX discrimination.
See Davis ex rel. Lashonda D. v. Monroe Cnty. Bd. of Educ.,

, 649–50 (1999) (citations omitted). An
administrator’s sexual relationship with a high school student
is a form of sexual harassment. See generally Gebser, 

. And “a school district can be held liable in damages in
cases involving a teacher’s sexual harassment of a student[.]”

 at 281 (citing Franklin v. Gwinnett Cnty. Pub. Schs., 

 (1992)). For a school district to be liable under Title
IX’s private right of action, an appropriate person must have




                                  8
actual knowledge of sex-based harassment and must respond
with deliberate indifference. See id. at 290.

        Thus, we must first determine whether an appropriate
person had actual knowledge of Sharkey’s sex-based
harassment of M.S.5 An appropriate person is “an official who
at a minimum has authority to address the alleged
discrimination and to institute corrective measures on the
recipient’s behalf.” Id. The actual knowledge requirement
forecloses damages liability based “solely on principles of
vicarious liability or constructive notice” and avoids the “risk
that the recipient would be liable in damages not for its own
official decision but instead for its employees’ independent
actions.” Id. at 288, 290–91.

                                A

       We are asked to decide whether a perpetrator of sex-
based harassment who has authority to address Title IX
violations and has knowledge of his own sex-based
harassment, like Sharkey,6 satisfies the appropriate-person
standard. This question is one of first impression for this Court.

5
  No party disputes that the School District receives federal
funding.
6
  Whether an assistant principal has the responsibility and
authority to qualify as an appropriate person is a question of
fact. See Bostic v. Smyrna Sch. Dist., 

, 362 (3d
Cir. 2005). Yet here, it is undisputed that, in the event of
complaints about harassment, an assistant principal like
Sharkey had the authority to implement corrective measures.
See App. 560–61 (deposition of assistant principal, Kristi
Kauffman Prime).




                                9
We hold that a perpetrator of sexual harassment who has
authority to remedy Title IX violations is not an appropriate
person for assessing a school district’s Title IX liability in a
private right of action.7

        M.S. argues that the Court’s holding in Gebser v. Lago
Vista Independent School District requires that, “[w]hen an
‘appropriate person’ has knowledge of the Title IX violation,
the analysis ends.” Appellants’ Br. 19 (citation omitted). But
Gebser also noted that when “a school district’s liability rests
on actual notice principles, . . . the knowledge of the
wrongdoer himself is not pertinent to the analysis.” 

 (citing Restatement (Second) of Agency § 280 (Am. Law.
Inst. 1958)).

       M.S. believes that Gebser’s reference to § 280 of the
Restatement is not applicable to Sharkey—or anyone who
would otherwise be an appropriate person who perpetrates
Title IX discrimination. See Appellants’ Br. 20. She attempts
to limit the Court’s reference by suggesting that § 280
“concerns knowledge of [a] principal through agents and
establishes that an agent’s knowledge of his or her own wrong
does not impute knowledge to a [principal].” Id. She concludes
that “[w]hen an appropriate person himself . . . causes the Title
IX violation, knowledge by another appropriate person is not
required.” Id. (citations omitted). In other words, M.S. believes
that Gebser’s statement that the wrongdoer’s knowledge of his




7
 We join the only other circuit to answer the question. See
Salazar v. S. San Antonio Indep. Sch. Dist., 

 (5th
Cir. 2017).




                               10
own misdeeds is irrelevant under actual-notice principles is
dicta.8

       M.S.’s perspective has some intuitive appeal. Gebser
did not clearly create an exception to damages liability when
the perpetrator would otherwise be an appropriate person. This
seems especially true because the perpetrator in Gebser was a
teacher and not an administrator with authority to remedy Title
IX violations. See Gebser, 524 U.S. at 277–78.

       But a closer reading of Gebser suggests that the Court’s
reference to § 280 was essential to its holding. In dissent,
Justice Stevens suggested that the Gebser majority misapplied
the appropriate person standard because “the teacher who
abused his student had the authority to take corrective
measures when he had actual knowledge of harassment.”
Salazar v. S. San Antonio Indep. Sch. Dist., 

, 278
(5th Cir. 2017); see Gebser, 

 n.8 (Stevens, J.,
dissenting) (noting that “[t]he fact that [the wrongdoer] did not

8
   Pointing to the appropriate person standard in Title IX
retaliation cases, M.S. also argues that “[i]t would be illogical
to” find that retaliation by an assistant principal is actionable
but abuse by an assistant principal who is an appropriate person
is not. Appellants’ Br. 20. But, in a Title IX retaliation case, an
appropriate person’s knowledge is not at issue because
retaliation presupposes knowledge of Title IX complaints that
motivates the adverse action. See, e.g., Doe v. Mercy Catholic
Med. Ctr., 

 (3d Cir. 2017) (“[T]o establish a
prima facie retaliation case under Title IX, [a plaintiff] must
prove she engaged in activity protected by Title IX, she
suffered an adverse action, and there was a causal connection
between the two.” (citation omitted)).




                                11
prevent his own harassment of [the student] is the consequence
of his lack of will, not his lack of authority” (emphasis added)).
Justice Stevens’s suggestion that the teacher in Gebser had the
authority to address sex discrimination and take corrective
measures prompted the Gebser majority to respond that the
knowledge of the perpetrator—even one that has authority to
correct wrongdoing—“is not pertinent to the analysis.” Id. at
291 (citation omitted).

        A hypothetical introduced by the Supreme Court in a
case about Title IX retaliation shows that Gebser’s
appropriate-person standard excludes perpetrators who had
authority to take corrective measures. In Jackson v.
Birmingham Board of Education, the Court noted that a school
district “would likely be liable for a Title IX violation” if “a
[school] principal sexually harasses a student, and a teacher
complains to the school board but the school board is
indifferent[.]” 

 (2005) (emphasis added). If a
school principal’s knowledge of his own wrongdoing is
sufficient, as M.S. contends, then the Court’s hypothetical
would not have needed to include a teacher informing the
school board of the wrongdoing.

       If anything, the hypothetical includes the report to the
school board precisely because Gebser’s holding includes an
exception to the appropriate-person rule: If an official with
authority to remedy Title IX discrimination is also the
perpetrator of Title IX discrimination, and no other official
with authority to remedy Title IX harassment has actual
knowledge of the harassment, then principles of actual-notice
render the wrongdoer’s knowledge irrelevant. See Gebser, 

; see also Salazar, 953 F.3d at 277–78.




                               12
        Two implications flow from Gebser. First, a
perpetrator’s knowledge of his own Title IX discrimination
does not satisfy Gebser’s actual-knowledge requirement even
if the perpetrator would otherwise be an appropriate person.
And second, any report to a perpetrator—even if the
perpetrator would otherwise be an appropriate person—will
not satisfy Gebser. To the contrary, for a school district to have
actual knowledge, a report must be made to an appropriate
person who is not the perpetrator.

       Even if Gebser’s holding does not explicitly include an
exception for when a perpetrator of sex-based harassment has
authority to remedy Title IX violations, three reasons show that
an exception is necessary.

       First, the exception is implied by the statutory provision
that supplied the appropriate-person standard. In Gebser, the
Court “fashioned” the remedy for damages in an implied right
of action using the “appropriate person” standard from Title
IX’s remedial scheme. 

. Under Title IX’s
remedial scheme, a recipient of federal funding may not lose
that funding because of sex-based harassment unless a federal
“department or agency . . . has advised the appropriate person
or persons of the failure to comply with the requirement and
has determined that compliance cannot be secured by
voluntary means.” 

. “When an individual’s
intentional conduct constitutes the [Title IX] discrimination,
the directive to ‘advise[ ]’ an appropriate person ‘of the failure
to comply’ connotes that the ‘appropriate person’ is unaware
of the misconduct.” Salazar, 953 F.3d at 279 (quoting 

).




                               13
       Second, it would frustrate “the purposes of Title IX” to
impose liability on a funding recipient when the only
authorized official who knows of the sexual harassment is the
perpetrator. 

. Title IX imposes liability only when a
federal-funding recipient knows of harassment and fails to
address it. See 

 at 280–81. Imposing liability when only the
perpetrator of the harassment knows of his wrongdoing “would
be more akin to strict liability[,] . . . or to respondeat superior,
which the Supreme Court expressly rejected as a basis for an
implied right of action under Title IX.” 

 at 281 (citing
Gebser, 524 U.S. at 287–88).

        Third, when an authorized official perpetrates sexual
harassment in violation of a school district’s stated policy, that
person’s failure to respond could not constitute deliberate
indifference on behalf of the school district. The premise of
damages liability in a Title IX private cause of action “is an
official decision by the recipient not to remedy” a Title IX
violation. Gebser, 

 (emphasis added). Gebser
expressly avoided imposing a lower standard that would hold
a school district liable “for its employees’ independent
actions.” 

. An authorized official’s concealed conduct
that violates an official policy can hardly constitute an official
decision by the school district but rather constitutes the rogue
official’s “independent action[ ].” 

       Here, the School District’s policy “prohibit[ed] all
forms of unlawful harassment of students . . . by all district . . .
staff members,” which included “inappropriate verbal, written,
graphic or physical conduct of a sexual nature.” App. 286–87.
The policy listed examples of sexual harassment, which
included “sexual flirtations, advances, touching or
propositions[.]” 

. Sharkey’s unlawful sexual




                                14
relationship with M.S. flagrantly violated the School District’s
policy and thus cannot be the School District’s “official
decision” not to remedy the Title IX violation. What’s more, a
perpetrator of sex-based harassment who has authority to take
corrective measures on a school district’s behalf is “highly
unlikely” to report his own misconduct to another official “who
is authorized to take corrective measures.” Salazar, 953 F.3d
at 279. For all these reasons, Sharkey, as the wrongdoer, is not
an appropriate person for purposes of the Title IX analysis.

                               B

       Sharkey’s knowledge of his own wrongdoing is
irrelevant to the School District’s actual knowledge of the
sexual harassment. No other appropriate person at the School
District had actual knowledge of Sharkey and M.S.’s sexual
relationship until September 2013. Within days of acquiring
that knowledge, the School District informed Sharkey of its
intention to terminate his employment.

       An appropriate person has actual knowledge of Title IX
discrimination when she is aware of known acts of
discrimination. See Davis, 

; Bostic v. Smyrna
Sch. Dist., 

, 361 (3d Cir. 2005). But this standard
may be satisfied only if a school district knows facts showing
a school official poses a substantial danger to students. Bostic,
418 F.3d at 361; cf. Bistrian v. Levi, 

 (3d Cir.
2012) (explaining that actual knowledge in a deliberate-
indifference standard may be satisfied if circumstantial
evidence can show an official’s actual knowledge).
Information suggesting the mere “possibility” of a sexual
relationship between a student and teacher is not sufficient.
Bostic, 418 F.3d at 360–61.




                               15
        Here, before September 2013, appropriate people did
not have actual knowledge of either Title IX discrimination by
Sharkey or of facts showing that he posed a substantial danger
to students. At most, appropriate people had information—
which they did not ignore—suggesting the possibility of a
sexual relationship between M.S. and Sharkey. The known
facts before September 2013 were insufficient to impose
liability on the School District under an actual-knowledge
standard. See Bostic, 418 F.3d at 360–61.

        M.S.’s arguments to the contrary are unavailing. First,
she argues that Sharkey’s conduct constituted harassment. But
that misses the point. The question is not whether Sharkey’s
conduct violated Title IX (both parties agree that it did) but
whether appropriate people knew of the Title IX
discrimination. Second, M.S. argues that there is sufficient
circumstantial evidence to show that appropriate people had
actual knowledge. As we have discussed, there was not. M.S.
contends that Bostic involved less available evidence. But
M.S.’s characterization of Bostic cannot overcome the paucity
of evidence tending to establish actual knowledge. Third, M.S.
points to her expert’s report that stated that “the information
was more than sufficient to place administrators . . . on notice
of the violation.” Appellants’ Br. 27. But an expert cannot
testify to the legal conclusion of whether appropriate people
had actual knowledge. See Berckeley Inv. Grp., Ltd. v. Colkitt,

, 217 (3d Cir. 2006) (“[A]n expert witness is
prohibited from rendering a legal opinion.” (citation omitted)).

                        *      *      *




                              16
       Because no appropriate person had actual knowledge of
Title IX discrimination, the School District is not liable to M.S.
for damages in her Title IX private right of action. We will
affirm the District Court.




                               17