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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-11370
________________________
D.C. Docket No. 0:16-cv-60667-WPD
MICHAEL SAPHIR,
1506 Meadows Blvd. Weston, FL 33327
by and through his legal guardians, Albert Saphir and Barbara Saphir,
Plaintiff - Appellant,
versus
BROWARD COUNTY PUBLIC SCHOOLS,
Defendant,
THE SCHOOL BOARD OF BROWARD COUNTY, FLORIDA,
Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(July 31, 2018)
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Before MARCUS and WILSON, Circuit Judges, and GRAHAM,∗ District Judge.
WILSON, Circuit Judge:
Michael Saphir, by and through his legal guardians Albert and Barbara
Saphir,1 appeals the district court’s grant of summary judgment in favor of the
School Board of Broward County, Florida. The Saphirs brought claims under Title
IX, as well as claims for negligence and negligent hiring, retention and
supervision. After careful review of the briefs and the record, and having the
benefit of oral argument, we conclude that the district court did not err in granting
summary judgment on all claims.
I. Background
In 2012, Michael was a minor living in Broward County, Florida, and
attending Cypress Bay High School. Michael suffers from a number of medical
and developmental conditions, which have caused him to have “an academic and
social developmental level that lag[s] [behind] his chronological age by several
years.” Students with special education needs, like Michael, were placed in the
school’s Exceptional Student Education department (ESE).
On April 5, 2012, Michael and his parents, Albert and Barbara, went to a
school-sponsored dance. Nubia Lorenz—an ESE aide assigned to the classroom of
∗
Honorable James L. Graham, United States District Judge for the Southern District of Ohio,
sitting by designation.
1
Because we discuss the actions of three Saphir family members, we refer to them by their first
names.
2
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Sheryl Sugerman, an ESE teacher at Cypress Bay—also went to the dance. While
waiting to enter the ballroom, Michael and his parents separated as Michael
mingled with other students. About fifteen to twenty minutes later, Albert and
Barbara saw Michael and Lorenz walk into the ballroom, “‘hand-in-hand,’ at times
with their arms around each other.”
After Albert and Barbara got into the ballroom some time later, they looked
around for their son. They found Michael and Lorenz seated at a table different
from the one assigned to the Saphirs. According to Albert and Barbara, Lorenz
appeared intoxicated and was “all over” Michael, “putting her arm around him,
hugging him.” Despite protests from Lorenz, Michael’s parents convinced
Michael to move to their assigned table. But Lorenz refused to leave Michael’s
side and followed the Saphirs to their assigned table. There, she sat next to
Michael and “clasp[ed] his hand, which was positioned on his leg.” Lorenz also
touched the side of her face to Michael’s face.
Albert and Barbara asked Lorenz to “let go of [Michael’s] hand” and “keep
her face away from his,” and also explained that Michael “was naive.” But Lorenz
stayed put. Another parent, Mark Sadek, then approached a school teacher helping
with the event, Jorge Cruz. Sadek told Cruz that Lorenz “was at the wrong table
and was doing something inappropriate.” Sadek also told Cruz that Lorenz had sat
on Michael’s lap. On Cruz’s request, Cruz’s wife, another school employee, went
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to the Saphirs’ table and escorted Lorenz out of the ballroom. Later that night,
however, Albert and Barbara saw Lorenz dancing with Michael and saw her slap
him “on the behind.” At that point, Albert and Barbara took Michael home.
On April 9, 2012, Albert and Barbara emailed Lonny Shapiro, the ESE
department director, about Lorenz’s behavior at the dance. They asked that Lorenz
no longer be allowed any contact with Michael and that it “be made clear to her
that her behavior was completely out of line.” Shapiro forwarded the email to
assistant principal Jeff Nelson, who was Shapiro’s supervisor and the person
responsible for investigating these types of allegations. Nelson in turn discussed
the allegations with Shapiro; the Cruzes; Albert; Lorenz; the school principal, Scott
Neely; and another assistant principal, Kassandra Fried. Ultimately, Lorenz “was
told [she] would have no contact with Michael.” Other Cypress Bay staff
members, including Sugerman and Neely, were made aware of this directive. On
April 11, Nelson also told Albert that Lorenz would be kept away from Michael
and other children. Beyond that, Nelson concluded “no additional action [was]
required.”
Michael and Lorenz had no physical or verbal contact after this, though he
continued to see her around the school. But that was not the end of things.
Sugerman and Bonnie Finfer, another ESE teacher at Cypress Bay, accused
Michael of lying about what happened at the dance and told his parents and other
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students he had lied. Then, on January 17, 2014, Finfer told Michael to leave a
physical education class because Lorenz was present, rather than making Lorenz
leave. Three days later, the Saphirs emailed Shapiro about it, saying that Michael
should not miss out on class because of Lorenz. Shapiro responded the next
morning. He said, “We have the situation worked out moving forward. Michael
will still get to participate. [Lorenz] will not be there during that time. Sorry for
the confusion.” Later that day, Finfer accused Michael of taking a female ESE
student into the boy’s restroom with him. Michael was later cleared of
wrongdoing. Michael also says Sugerman and Finfer physically hurt him and
threatened his life.
On March 22, 2014, Michael told his private therapist that Lorenz had
“grabbed his penis over his pants”2 at the dance. When the Saphirs told Cypress
Bay administrators this, the Broward County School Board began a formal
investigation and placed Lorenz on administrative leave. Lorenz resigned before
the School Board completed its investigation.
The Saphirs sued the School Board for violating Title IX of the Education
Amendments of 1972,
20 U.S.C. § 1681. They alleged that Lorenz sexually
harassed Michael and that Michael was retaliated against for reporting her conduct.
The Saphirs also claimed violations of state law. They alleged that the School
2
It is not disputed that this is the first time Michael told anyone that Lorenz had touched his
genitals.
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Board was negligent in holding the dance and in its response to the allegations of
sexual harassment. They also alleged that the School Board negligently hired,
retained, and supervised Lorenz. The School Board moved for summary judgment
on all claims, which the district court granted. This appeal followed.
II. Standard of Review
We review de novo a district court’s grant of summary judgment, “taking all
of the facts in the record and drawing all reasonable inferences in the light most
favorable to the non-moving party.” Peppers v. Cobb Cty.,
835 F.3d 1289, 1295
(11th Cir. 2016). Summary judgment is proper where “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 “may affirm for any reason supported by the record,
even if not relied upon by the district court.” Allen v. USAA Cas. Ins. Co.,
790
F.3d 1274, 1278 (11th Cir. 2015).
III. Discussion
A. Sexual Harassment
A teacher’s sexual harassment of a student constitutes actionable sex-based
discrimination under Title IX. Franklin v. Gwinnett Cty. Pub. Sch.,
503 U.S. 60,
75,
112 S. Ct. 1028, 1037 (1992). Liability under “Title IX is predicated upon
notice to an ‘appropriate person’ and an opportunity to rectify any violation.”
Gebser v. Lago Vista Indep. Sch. Dist.,
524 U.S. 274, 290,
118 S. Ct. 1989, 1999
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(1998) (quoting
20 U.S.C. § 1682). Thus, to survive summary judgment, the
plaintiff must show that an appropriate person “has actual notice of, and is
deliberately indifferent to, the teacher’s misconduct.”
Id. at 277,
118 S. Ct. at
1993.
An “appropriate person” is “an official of the school district who at a
minimum has authority to institute corrective measures on the district’s behalf.”
Id. The person “must be high enough up the chain-of-command that his acts
constitute an official decision by the school district itself not to remedy the
misconduct.” Doe v. Sch. Bd. of Broward Cty.,
604 F.3d 1248, 1255 (11th Cir.
2010) (internal quotation marks omitted). Whether a particular school employee is
an appropriate person is “necessarily a fact-based inquiry because officials’ roles
vary among school districts.”
Id. at 1256 (internal quotation marks omitted).
Thus, we look beyond title and position to the actual discretion and responsibility
held by an official, and consider the type and number of corrective measures
available to an official. See
id. at 1256–57.
“[S]chool administrators will only be deemed deliberately indifferent if their
response to the harassment or lack thereof is clearly unreasonable in light of the
known circumstances.”
Id. at 1259 (internal quotation marks omitted). “[W]here a
school district has knowledge that its remedial action is inadequate and ineffective,
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it is required to take reasonable action in light of those circumstances . . . .”
Id. at
1261.
The Saphirs argue that Jorge Cruz was an appropriate person because he had
authority to take corrective action to end the discrimination. In support, the
Saphirs point to two facts: (1) Cruz’s testimony that he did not need to ask or
notify anyone before intervening with Lorenz at the dance; and (2) Nelson’s
testimony that Cruz had the authority to ask Lorenz to leave the dance if he thought
her behavior was inappropriate. But those allegations are not sufficient to raise a
genuine issue of material fact about whether Cruz was an appropriate person for
purposes of reporting a Title IX violation. Though having the authority to take
corrective action to end the discrimination is a necessary condition for finding that
an official is an appropriate person, this authority alone is not sufficient. See
id. at
1255. The Saphirs have failed to show that Cruz had the kind of responsibility,
discretion, and authority—whether in the school hierarchy generally or over
Lorenz specifically—such that he could be considered “high enough up the chain-
of-command.” We therefore affirm the district court’s conclusion that Cruz was
not an appropriate person as a matter of law.
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The Saphirs also argue that Jeff Nelson was deliberately indifferent to
Lorenz’s sexual harassment of Michael.3 They point out that Nelson did not
interview other eyewitnesses, including Michael, or report the incident for formal
investigation. The Saphirs also point to Nelson’s failure to keep Lorenz away from
other children by putting her on administrative leave. The Saphirs claim that, as a
result of Nelson’s actions, Michael was subjected to additional harassment because
Michael (1) continued to see Lorenz around the school, (2) missed class time, and
(3) was mistreated by Sugerman and Finfer.
While Nelson’s response may have been imperfect, it did not amount to
deliberate indifference. Within two days of receiving the email, Nelson conducted
an informal investigation, which included interviewing and taking statements from
the Cruzes and Lorenz, discussing the allegations and the appropriate response
with three other administrators, and speaking with Albert. And Nelson took
corrective action by directing Lorenz to stay away from Michael and telling other
teachers and administrators about that directive. No one disputes that Lorenz had
no verbal or physical contact with Michael after the dance.
Also, when the school was informed that its response might be inadequate or
ineffective, it immediately took reasonable action. For instance, when the Saphirs
3
The parties’ briefs address only whether Nelson’s conduct amounted to deliberate indifference.
Our analysis therefore assumes that Nelson was an appropriate person with actual notice of
Lorenz’s misconduct.
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notified the school that Michael missed class because of efforts to keep him and
Lorenz separated, Shapiro responded within twenty-four hours that the situation
had been corrected. Nothing in the record indicates that Michael missed class after
that complaint.
Further, Nelson’s failure to put Lorenz on administrative leave was not
clearly unreasonable. This was the first complaint of its kind against Lorenz, and
the known circumstances at the time did not include any allegations of genital
contact. When allegations of genital contact were made, school officials
immediately referred the Saphirs’ complaint for a formal investigation and placed
Lorenz on administrative leave.
Because the Saphirs cannot show that any appropriate person had actual
notice of and was deliberately indifferent to Lorenz’s misconduct, we affirm the
grant of summary judgment on this claim.
B. Retaliation
“Retaliation against a person because that person has complained of sex
discrimination is [a] form of intentional sex discrimination encompassed by Title
IX’s private cause of action.” Jackson v. Birmingham Bd. of Educ.,
544 U.S. 167,
173,
125 S. Ct. 1497, 1504 (2005). To prevail on a retaliation claim, Michael must
prove that “the [School] Board retaliated against him because he complained of
sex discrimination.”
Id. at 184,
125 S. Ct. at 1510. He must show that (1) he
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reported the harassment; (2) he suffered an adverse action; and (3) there is a causal
connection between the two. See
id. Because the Saphirs seek to hold the School
Board liable under Title IX, they must also show that the School Board knew about
the report of Lorenz’s harassment and that the School Board took the adverse
action. See Davis v. Monroe Cty. Bd. of Educ.,
526 U.S. 629, 640,
119 S. Ct. 1661,
1670 (1999); Gebser,
524 U.S. at 285,
118 S. Ct. at 1997 (stating that “it would
‘frustrate the purposes’ of Title IX to permit a damages recovery against a school
district for a teacher’s sexual harassment of a student based on principles
of respondeat superior or constructive notice”).
The Saphirs claim that in retaliation for the April 9 email, Sugerman and
Finfer (1) accused Michael of lying about Lorenz’s actions at the dance in front of
his parents and other students, (2) falsely accused Michael of sexual misconduct
with another student, and (3) made threats on Michael’s life and physically
accosted him. However, the Saphirs have not shown that the School Board took
any adverse action against Michael. There is nothing in the record showing, for
example, that these actions were directed by or done with the approval of officials
who had the authority to act for the School Board. And the teachers’ conduct was
not of the kind that necessarily or typically requires the authority or approval of
such officials. Neither was the retaliatory conduct so widespread at the school that
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we could infer the implicit knowledge or approval by such officials. We therefore
affirm the district court’s grant of summary judgment on this claim.
C. Negligence
Florida schools have a duty to supervise students placed within their care.
Rupp v. Bryant,
417 So. 2d 658, 666 (Fla. 1982). “Florida courts have recognized
a special relationship between schools and their students based upon the fact that a
school functions at least partially in the place of parents during the school day and
school-sponsored activities.” Limones v. Sch. Dist. of Lee Cty.,
161 So. 3d 384,
390 (Fla. 2015). “This duty to supervise requires teachers and other applicable
school employees to act with reasonable care under the circumstances.”
Id.
The Saphirs argue that the School Board breached its duties to supervise the
activities of students and to conduct a reasonable investigation in response to the
complaint to Cruz. However, they cannot show that the School Board failed to act
with reasonable care under the circumstances. The School Board had in place a
comprehensive nondiscrimination policy which includes a prohibition on sexual
harassment, and conducted annual training on this policy. The dance was not
organized in an unreasonably safe manner. Lorenz’s employment history was
devoid of information that would have alerted the School Board that it needed to
take special care with Lorenz. And the School Board conducted two separate
investigations into the accusations. The evidence establishes that the School Board
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used “the degree of care that a person of ordinary prudence, charged with the
duties involved, would exercise under the same circumstances.” Wyke v. Polk Cty.
Sch. Bd.,
129 F.3d 560, 571 (11th Cir. 1997) (internal quotation marks omitted).
We therefore affirm the district court’s grant of summary judgment on this claim.
D. Negligent Hiring, Retention, and Supervision
“Negligent supervision occurs when during the course of employment, the
employer becomes aware or should have become aware of problems with an
employee that indicated his unfitness, and the employer fails to take further actions
such as investigation, discharge, or reassignment.” Dep’t of Envtl. Prot. v. Hardy,
907 So. 2d 655, 660 (Fla. Dist. Ct. App. 2005). The Saphirs “must allege facts
sufficient to show that once an employer received actual or constructive notice of
problems with an employee’s fitness, it was unreasonable for the employer not to
investigate or take corrective action.”
Id. “There must be a connection and
foreseeability between the employee’s employment history and the current tort
committed by the employee.”
Id. at 661; see also Island City Flying Serv. v. Gen.
Elec. Credit Corp.,
585 So. 2d 274, 277 (Fla. 1991).
The Saphirs argue that Lorenz was retained and left unsupervised at the
dance after the complaint was made to Cruz, allowing her to assault Michael, and
that she continued to be retained in the same position at the school, allowing her to
come in frequent contact with Michael, to his detriment. But because there are no
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allegations that any sexual harassment occurred after the dance, the Saphirs must
show that the School Board received actual or constructive notice of problems with
Lorenz’s fitness before or during the dance, and that the School Board
unreasonably failed to investigate or take corrective action.
The Saphirs cannot make such a showing. There is nothing in the record
regarding any information in Lorenz’s background that would have put the School
Board on notice that she was unsuitable for employment. Notice to Cruz, who had
no authority beyond asking Lorenz to leave the dance, was not sufficient notice to
the School Board. And, as discussed above, when the Saphirs complained about
Lorenz’s behavior, the School Board took reasonable corrective action. We affirm
the district court’s grant of summary judgment on this claim.
IV. Conclusion
The district court did not err in granting summary judgment on all claims.
AFFIRMED.
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