Brittany Plamp v. Mitchell School Dist. No. 17-2 ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 08-2700
___________
Brittany Ann Plamp, *
*
Appellant, *
*
v. * Appeal from the United States
* District Court for the
Mitchell School District No. 17-2, * District of South Dakota.
*
Appellee, *
*
Andrew Tate, *
*
Third Party Appellee. *
___________
Submitted: March 11, 2009
Filed: May 12, 2009
___________
Before MURPHY, MELLOY, and SHEPHERD, Circuit Judges.
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MELLOY, Circuit Judge.
Brittney Plamp filed this suit against the Mitchell School District (“School
District”) after she was battered by one of her high-school teachers, Andrew Tate.
Plamp asserted claims under Title IX of the Education Amendments of 1972, 20
U.S.C. § 1681–88; a constitutional civil-rights claim under 42 U.S.C.§ 1983; and a
state-law battery claim based on a South Dakota vicarious-liability law. The School
District filed a third-party, state-law-based complaint against Tate for failure to report,
failure to comply with School District policy, contribution, and employee misconduct.
The district court1 granted summary judgment in favor of the School District
as to Plamp’s § 1983 claim. The district court retained jurisdiction over the remaining
claims and held a jury trial. At the close of its case, the School District moved for
judgment as a matter of law on Plamp’s Title IX claim, which the district court
granted. Upon submission of the remaining claims, the jury found that while Tate had
battered Plamp, the School District was not vicariously liable for that battery. Plamp
appeals, arguing that the court erred with respect to its disposition of the Title IX and
§ 1983 claims. Plamp further argues that the adverse vicarious-liability verdict was
not supported by the evidence. Finally, Plamp argues that the court erred in refusing
to instruct the jury that it was prohibited from considering the source of any potential
damage payment to Plamp and erred in excluding certain evidence relevant to the §
1983 and Title IX claims. We affirm the decisions of the district court and the jury’s
verdict.
I.
Plamp was a student at Mitchell High School from Fall 2002 until her
graduation in Spring 2006. Tate had been employed at the school since 1988, and in
addition to teaching an American government course, he was the boys wrestling and
golf coach. While Plamp was acquainted with Tate because her boyfriend was a
wrestler, the first time that she was in one of Tate’s classes was during the 2005–06
school year. Tate’s harassment of Plamp began while she was a student in that class.
Tate was aware that Plamp suffered from anorexia nervosa and used that
information as pretext to engage in inappropriate behavior. Plamp testified that Tate
1
The Honorable John E. Simko, United States Magistrate Judge for the District
of South Dakota, sitting by the parties’ consent. See 28 U.S.C. § 636(c).
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would often call her to his desk during class while others were engaged in group work
and question her about her eating disorder and her treatments for the illness. On one
occasion, Tate requested that Plamp bring in a photograph of herself with few clothes
on so that he could see signs of her anorexia. In addition to these comments and
requests, Plamp testified that Tate would caress her shoulders and once made a
statement about her “knockout body.” He also told Plamp that she should eat more
so that her breasts were not so disproportionate to her “skinny” body. At the time,
Plamp kept most of what Tate said to herself; although, she did mention his comment
about her “knockout body” to her mother sometime in the Spring of 2006.
On May 8, 2006, after Plamp had missed Tate’s class for a doctor’s
appointment, Tate requested that she come to his room early the next day. When she
entered his classroom the next morning, Tate began talking about his familiarity with
eating disorders, and he requested that Plamp “come over” to him because he wanted
“to see the signs of [her] being anorexic.” In an area of the room not visible to those
outside of the classroom, Tate proceeded to batter Plamp. Tate then attempted to
engage Plamp in a conversation about her sex life and sexual preferences. No one
entered the room during their encounter. When the bell rang to indicate the beginning
of morning classes, Tate told Plamp that he wanted her to return the next morning so
that he could weigh her without any clothing. He also told Plamp to refrain from
mentioning their meeting to anyone, including her parents and boyfriend. That same
day, however, Plamp revealed to her best friend and boyfriend what had happened.
Two days later, on May 11, she told her mother and father. Plamp’s parents
immediately reported Tate’s conduct to the School District’s superintendent, Dr.
Joseph Graves. Both Plamp’s mother and Superintendent Graves called the police.
Graves immediately suspended Tate and refused to allow him on school property
without a police escort. The School District eventually terminated Tate.
It is undisputed that May 11was the first time that the School District was made
aware of Tate’s harassment of Plamp. The testimony and evidence admissible at trial,
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however, indicated that there were occasional concerns about Tate’s behavior
throughout his years as a teacher. The district court admitted evidence of three
specific instances at trial. First, sometime around 1995, an anonymous man spoke
with Judy Thiesse, the school’s guidance counselor. The man claimed that his fiancée
(who was a former student at Mitchell High School) was having sex-related problems
because of her experiences with Tate. Thiesse referred the man to the then principal,
Terry Aslesen. Aslesen testified that the man wanted a male teacher fired, but he
refused to tell Aslesen the name of the teacher, what class the teacher taught, or the
name of his fiancée. The man would not discuss his fiancée’s problem in further
detail and left the school after Aslesen said that he would need more information in
order to act on the man’s concerns.
The second instance occurred sometime in 2000. At that time, a female student
complained to Thiesse that she felt “uncomfortable” in Tate’s class. Thiesse
accompanied the student to the then and current principal, Yvonne Palli’s, office to
talk about the matter further. While in Palli’s office, the student refused (or was
unable) to articulate why she was uncomfortable in Tate’s class. As an
accommodation, the student was allowed to sit at the desk closest to the door in Tate’s
room. The school also provided her with a permanent hall pass. More recently,
during the 2004–05 school year, another female student complained to Thiesse that
Tate made her feel uncomfortable in class. This student was able to describe her
discomfort in greater detail than the previous student and informed Thiesse that Tate
was using instances of graphic sexual violence against women to teach various parts
of his class. She expressed concern that Tate appeared to garner pleasure at this.
Thiesse took the student’s complaint to Palli, and Palli promised to speak with Tate.
According to Palli’s testimony, she informed him that his lessons were making
students uncomfortable. The student did not complain to Thiesse or Palli further.
Plamp sought to introduce additional evidence of Tate’s allegedly inappropriate
behavior in the form of testimony from various teachers and students. Such evidence
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included a student’s statement that she and two other students had discussed Tate’s
sexual advances and that a teacher had overheard their complaints; a teacher’s
testimony that female students had told him that Tate looked down female students’
shirts when he passed out papers, that he had heard students call Tate “creepy,” and
that students told him that Tate gave better grades when female students “dressed like
[] whore[s]”; another teacher’s testimony that students had called Tate a “pervert,”
that the teacher’s own daughter had complained about Tate’s inappropriate comments,
and that Thiesse had stopped him in the hall and told him that many females had
complained about Tate; a student’s testimony that Theisse had told the student that
there had been “problems with Tate in the past” and that Theisse had told Aslesen
about the problems, but that Aslesen had done nothing; and evidence that the School
Board President had sent Aslesen and Tate photographs of partially nude adult-female
golfers via his official school e-mail account. The district court excluded much of the
testimony on the grounds that it failed to establish that the legally relevant persons had
notice of Tate’s misconduct or a pattern of unconstitutional behavior generally. It
further determined that the remaining evidence was inadmissible hearsay.
The School District has had a sexual-harassment policy since 1993, and that
policy was in effect at all times relevant to this action. The School District reviewed
and revised the policy in 1994, 1998, and 2000. The School District reviewed the
policy again in 2003. The School District provides School District staff members with
a copy of that policy at the beginning of each school year. The district court found the
School District’s policy and that of the Associated School Boards of South Dakota to
be almost identical. In addition to the written policy, the School District staff
members are provided with workshops and training on sexual harassment, child abuse,
and all the relevant reporting requirements under state law. Such polices are also
posted in the administrative offices and staff areas of each school in the School
District. The School District also has a coordinator responsible for ensuring proper
compliance with Title IX. The School District further operates with a student-
grievance procedure that is contained within the student handbook. The handbook
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contains information about the School District’s sexual-harassment policy, and
students received training about that policy during the 2004, 2005, and 2006 school
years.
II.
A. Title IX Discrimination Claim
Federal Rule of Civil Procedure 50(a) allows a “district court to enter judgment
against a party in a jury trial on a claim . . . that the party cannot maintain under the
controlling law, so long as the party has been fully heard on the issue and there is no
legally sufficient evidentiary basis for a reasonable jury to find for that party on the
issue.” Tatum v. City of Berkeley, 408 F.3d 543, 549 (8th Cir. 2005). This court
reviews de novo the district court’s decision to grant a motion for judgment as a
matter of law. Id.
Title IX provides that “[n]o 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 educational program or activity receiving Federal financial
assistance.” 20 U.S.C. § 1681(a). “For a school to incur liability under Title IX, it
must be (1) deliberately indifferent (2) to known acts of discrimination (3) [that] occur
under its control.” Shrum ex rel. Kelly v. Kluck, 249 F.3d 773, 782 (8th Cir. 2001)
(citing Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 642 (1999)). “An
educational institution may be liable under Title IX for a teacher’s sexual harassment
of a student.” Cox v. Sugg, 484 F.3d 1062, 1066 (8th Cir. 2007) (citing Gebser v.
Lago Vista Indep. Sch. Dist., 524 U.S. 274, 281 (1998)). Such liability cannot stand,
however, unless an appropriate person “‘has actual knowledge of discrimination .
. . and fails adequately to respond.’” P.H. v. Sch. Dist. of Kan. City, Mo., 265 F.3d
653, 661 (8th Cir. 2001) (quoting Gebser, 524 U.S. at 290). An “appropriate person”
is one “who at a minimum has authority to address the alleged discrimination and to
institute corrective measures on the recipient’s behalf.” Id.; Gebser, 524 U.S. at 290
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(“An ‘appropriate person’ under § 1682 is, at a minimum, an official of the recipient
entity with authority to take corrective action to end the discrimination.”).
The School District contends that judgment as a matter of law was proper
because no “appropriate” school official had knowledge of Tate’s discriminatory
actions, and it did not act with deliberate indifference once it became aware of those
actions. Plamp counters with two arguments. First, she claims that the district court
erred by concluding that the school principals did not have actual knowledge of the
harassment. Second, she asserts that the court erred by concluding that Thiesse and
the school’s teachers were not “appropriate persons” within the meaning of § 1682.
Plamp contends that Thiesse and the school’s teachers can serve as “appropriate
persons” because the School District vests them with the ability to institute corrective
measures by informing the school administration of any suspected harassment. In
fact, they have a duty to report such conduct. Plamp argues that because school
guidance counselors and teachers are “appropriate persons,” the court erred in failing
to admit certain evidence of their knowledge of Tate’s actions. While we in no way
condone Tate’s behavior, we find Plamp’s arguments unavailing.
We recognize that the administration of a school and the roles that various
persons fill therein vary from district to district. As such, we do not pretend to fashion
a bright-line rule as to what job titles and positions automatically mark an individual
as having sufficient authority or control for the purposes of Title IX liability. See
Murrell v. Sch. Dist. No. 1, Denver, Colo., 186 F.3d 1238, 1247 (10th Cir. 1999)
(“Because officials’ roles vary among school districts, deciding who exercises
substantial control for the purposes of Title IX liability is necessarily a fact-based
inquiry.”). It is apparent from Supreme Court precedent, however, that school
principals are considered “appropriate persons” in the Title IX analysis. See, e.g.,
Davis, 526 U.S. at 653 (discussing the principal’s actual knowledge of harassment);
Gebser, 524 U.S. at 291 (assuming without discussion that a high-school principal was
an appropriate person under the statute); see also Murrell, 186 F.3d at 1247 (“We find
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little room for doubt that the highest-ranking administrator at [the high school]
exercised substantial control of [the teacher] and the [high school] environment during
school hours, and so her knowledge may be charged to the School District.”).
Both Principals Palli and Asleson possessed the power to institute corrective
measures and stop Tate’s discrimination during their respective tenures by seeking
to reprimand, further supervise, suspend, or even fire Tate. Plamp has failed to
establish, however, that either of these individuals possessed actual knowledge of
Tate’s discriminatory conduct toward her or anyone else. P.H., 265 F.3d at 661–63.
As recounted above, the admissible evidence only established that an anonymous man
made a vague complaint against Tate sometime around 1995 and that two female
students were “uncomfortable” in Tate’s class. One of those students was unable or
unwilling to articulate why she was uncomfortable, and when the other student
expressed particularized concerns, Palli spoke with Tate about those concerns. These
vague complaints are insufficient to support a finding that either Palli or Asleson had
actual knowledge of Tate’s discriminatory actions. See, e.g., Gebser, 524 U.S. at 291
(“[A] complaint from parents of other students charging only that [the teacher] had
made inappropriate comments during class” was “plainly insufficient to alert the
principal to the possibility that [the teacher] was involved in a sexual relationship with
a student.”); P.H., 265 F.3d 662–63 (determining that complaints that could be
construed as “showing favoritism” but that did not “voice[] any suspicions of sexual
abuse” were insufficient to establish knowledge of such abuse). With respect to Plamp
specifically, it is undisputed that Plamp did not tell anyone about her experiences with
Tate other than her friend, boyfriend, and mother. When her mother told
Superintendent Graves, he took immediate action.
Additionally, while we do not hold that school guidance counselors and
teachers are always without the authority necessary to institute corrective measures
or lack sufficient control to take remedial action, the record in this case does not
support a finding that Theisse or the Mitchell High School teachers were “appropriate
persons” within the meaning of the statute. See P.H., 265 F.3d at 662 (“There is an
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insufficient factual basis. . . to consider [the] claim that a teacher who is not the
wrongdoer but who has a duty to report might have sufficient control to take remedial
action.”). Plamp has presented no evidence that the teachers who testified in
depositions regarding various concerns that students had raised about Tate had control
over Tate. She has also presented no evidence that these teachers were vested with
special remedial authority regarding sexual-harassment claims generally so as to
empower them to stop the harassment. And, as a result, their knowledge of Tate’s
actions is of little relevance to the disposition of the case. See P.H., 265 F.3d at 662;
cf. Davis, 526 U.S. at 641–43 (indicating that in the context of student-on-student
harassment, an appropriate person is someone with the ability to “remedy” the abuse).
Furthermore, Plamp has failed to establish that the guidance counselor, Thiesse,
was an appropriate person with authority to institute corrective measures.2 Plamp
presented the following evidence in support of her claim that Theisse had such
authority: (1) students regularly went to Thiesse with complaints about teachers and
coursework, thus implying that they saw her as having the power to help; (2) Principal
Palli was unapproachable; and (3) Thiesse was required by the sexual-harassment
policy to report suspected instances of abuse or harassment to the administration. This
evidence, however, is insufficient to establish that Thiesse had remedial powers of
the type required to find the School District liable under Title IX. There was no
evidence that Theisse had the power to stop or prevent the harassment from occurring
by taking actions such as suspending Tate from teaching, curtailing his teaching or
other school-related privileges, requiring him to attend sessions or meetings about his
behavior, or ensuring that he was under greater supervision. See Warren ex rel. Good
2
Plamp argues that “there is no evidence that Thiesse did not have the authority
to end the harassment or to conduct an investigation,” but it was Plamp who bore the
burden to put forth evidence that Thiesse had such authority. It was not the School
District’s burden to show that Thiesse did not. Lam v. Curators of the Univ. of Mo.
at Kan. City Dental Sch., 122 F.3d 654, 657 (8th Cir. 1997) (plaintiff has burden to
establish prima facie case).
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v. Reading Sch. Dist., 278 F.3d 163, 173 (3d Cir. 2002) (finding a guidance counselor
was not an appropriate person “cloaked with sufficient authority . . . during any
relevant time” despite the fact that the counselor was charged with handling “referrals
for abuse and assumed the role of principal when [the principal] was not in the
building” as part of the regular job duties); cf. Murrell, 186 F.3d at 1247–48 (refusing
to foreclose the possibility that counselors and teachers could be “appropriate
persons” in the context of student-on-student harassment; provided, however, that the
teachers “exercised control over the harasser and the context in which the harassment
occurred”).
Contrary to Plamp’s claim, Title IX does not contemplate a definition of
“corrective measures” so broad as to include the mere ability to report suspicions of
discriminatory conduct to someone with the authority to stop the abuse or control the
harasser. Such an approach would expand the scope of Title IX liability beyond that
which Congress intended and would functionally open all educational institutions to
liability based on a theory of respondeat superior or constructive notice—a move that
the Supreme Court has clearly stated the statute does not contemplate. Gebser, 524
U.S. at 286; cf. Davis, 526 U.S. at 641(“[A] recipient of federal funds may be liable
. . . only for its own misconduct.”). After all, each teacher, counselor, administrator,
and support-staffer in a school building has the authority, if not the duty, to report to
the school administration or school board potentially discriminatory conduct. But that
authority does not amount to an authority to take a corrective measure or institute
remedial action within the meaning of Title IX. Such a holding would run contrary
to the purposes of the statute. See Gebser, 524 U.S. at 289 (“Presumably, a central
purpose of requiring notice of the violation ‘to the appropriate person’ and an
opportunity for voluntary compliance before administrative enforcement proceedings
can commence is to avoid diverting education funding from beneficial uses where a
recipient was unaware of discrimination in its programs and is willing to institute
prompt corrective measures.”).
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In conclusion, we do not hold that guidance counselors and school teachers are
never “appropriate persons” for the purposes of finding a school district liable for
discrimination under Title IX; however, the record here does not establish that Theisse
and these particular teachers were vested with sufficient “authority to address the
alleged discrimination and to institute corrective measures.” P.H., 265 F.3d at 662.
Accordingly, we affirm the district court’s grant of judgment as a matter of law
regarding Plamp’s Title IX claim.
B. 42 U.S.C. § 1983 Claim
“We review an order granting summary judgment de novo, viewing the
evidence in the light most favorable to the nonmoving party.” S.J. v. Kan. City Mo.
Pub. Sch. Dist., 294 F.3d 1025, 1027 (8th Cir. 2002) (quotation omitted). “A school
district can be liable for civil-rights violations under § 1983 either for failing to
receive, investigate, and act upon complaints of [unconstitutional conduct] or for
failing to train its employees to prevent or terminate [unconstitutional conduct].”
P.H., 265 F.3d at 658. Plamp contends that the district court erred in granting
summary judgment in favor of the School District on her § 1983 claim because issues
of material fact remain as to whether the School District had notice of sexual
harassment at the school and failed to act upon it and whether the School District
failed to train its employees to prevent or report such harassment. We disagree.
In order to defeat summary judgment on her § 1983 failure-to-act claim, Plamp
was required to present evidence that (1) there was a “continuing, widespread,
persistent pattern of unconstitutional misconduct,” (2) the school’s “policymaking
officials” were deliberately indifferent to or tacitly authorized such conduct after
gaining knowledge of such conduct, and (3) Plamp “was injured by acts pursuant to
the [school’s] custom.” Thelma D. v. Bd. of Educ., City of St. Louis, 934 F.2d 929,
933–34 (8th Cir. 1991).
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Despite the School District’s arguments to the contrary, Plamp presented
sufficient evidence to establish that Tate was engaging in unconstitutional conduct.
See Wright v. Rolette County, 417 F.3d 879, 884 (8th Cir. 2005) (“Sexual harassment
by state actors violates the Fourteenth Amendment and establishes a section 1983
action.” (quotation and alteration omitted)); P.H., 265 F.3d at 658 (“It is well-settled
that the Due Process Clause of the Fourteenth Amendment protects the liberty interest
of a child in public school from sexual abuse.” (quotation omitted)).
Even given this finding, however, Plamp has failed to raise an issue of material
fact as to whether the relevant policymaking officials had knowledge of a continuing,
widespread, persistent pattern of unconstitutional misconduct. First, Plamp has failed
to present sufficient evidence of a pattern of misconduct. As outlined above, the
evidence of Tate’s unconstitutional conduct was limited and vague. The three
concrete complaints were scattered over approximately twelve years and contained
little in terms of content that could raise more than a suspicion of sexual harassment.
See P.H., 265 F.3d at 659 (considering relevant the time span and the detail of the
complaints). There was also no evidence that other teachers or school personnel had
been disciplined for misconduct over the years. Plamp cites the evidence that the
district court excluded on hearsay and relevancy grounds as supporting the widespread
nature of the discrimination, and she claims that the court effectively prevented her
from making out a case based on circumstantial evidence. With regard to this
evidence, however, Plamp fails to overcome the barriers of the hearsay rule, and, thus,
the evidence cannot defeat summary judgment. See Johnson v. Baptist Med. Ctr., 97
F.3d 1070, 1073 (8th Cir. 1996).
Second, even assuming that Plamp’s evidence was sufficient to raise a question
of fact as to whether there was a pattern of unconstitutional conduct, she fails to raise
an issue of fact as to whether the relevant policymaking body had notice of Tate’s
actions, not to mention a continuing, widespread, persistent pattern of unconstitutional
misconduct generally. Plamp argues that the relevant policymaking body with notice
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for purposes of § 1983 liability is not limited to the School District’s School Board but
also includes lower-level officials at Mitchell High School. Alternatively, Plamp
claims that even if the relevant body is limited to the School Board, the lower-level
officials’ knowledge can be imputed to that body. Plamp claims that in either
instance, based on her imputed-knowledge theory, the district court improperly
excluded evidence of that knowledge. Plamp’s arguments are unavailing.
In this case, the in-house school administration cannot be considered a
“policymaking body” for the purposes of the notice requirement under § 1983. While
we have not explicitly addressed the issue, we have never found such an entity to be
the relevant policymaking body. See Thelma D., 934 at 933 (“The parties appear to
be in agreement for the purposes of this summary judgment motion that only the
Board has final policymaking authority.”); P.H., 265 F.3d at 659–60 (referring to the
“Kansas City School District” or “school district” as relevant body for a § 1983 claim
rather than the officials at the school). Furthermore, in Thelma D., we warned of the
danger in having school hierarchies structured so as to shield information from the
school board in order to avoid liability under § 1983. See Thelma D., 934 F.2d at 936
(“[T]his court will closely scrutinize bureaucratic hierarchies which, in their operation,
tend to insulate . . . policymaking officials from knowledge of events which may
subject them to § 1983 liability.”). If Plamp were correct in her argument that liability
can be predicated, in all circumstances, on the knowledge of an entity other than the
school board, then our warning in Thelma D. would be rendered somewhat
meaningless.
Furthermore, Plamp has presented no evidence that convinces us that, despite
the existence of the School Board, the in-house school administration was, in fact and
practice, the final policymaking body. For example, the evidence at trial indicated that
while the School District’s building principals and assistant principals were
responsible for revising and reviewing the student handbooks, they were required to
do so in consultation with the Superintendent. It was also the School Board that was
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ultimately responsible for approving policies and any subsequent amendments to those
policies. Cf. Ware v. Jackson County, Mo., 150 F.3d 873, 886 (8th Cir. 1998)
(finding an individual was a policymaker on personnel matters under § 1983 based on
the fact that he was the director of department of corrections; he had authority to
promulgate the department’s policy, which included the rules of conduct for
personnel; he had the authority to implement such policy; he exclusively handled the
disciplinary actions; and there was no proven mechanism through which a higher
authority had the ability to review his discipline decisions); McGautha v. Jackson
County, Mo., Collections Dept., 36 F.3d 53, 56 (8th Cir. 1994) (“Although [the
official] headed the collections department and was responsible for its day-to-day
operations, neither he nor [a fellow employee] dictated final policy. They merely
exercised their discretion in carrying out officially pronounced county policy. Their
actions were reviewable by the county executive and were also subject to written
county policy.”).
South Dakota law further supports the finding that the in-house officials’
knowledge was insufficient for notice under § 1983, as school boards are the
designated policymaking bodies in the state. See S.D. Codified Laws § 13-8-1 (“The
school board is . . . to serve as the governing board of a school district for the purpose
of organizing, maintaining, and locating schools and for providing educational
opportunities and services for all citizens residing within the school district.”); id. §
13-8-39 (“[T]he school board has general charge, direction and management of the
schools of the district and control and care of all property belonging to it.”).
Concluding that the in-house officials at Mitchell High School were not the
appropriate policymaking body in this case, we also find that the relevant entity here,
the School Board or Superintendent, did not have knowledge of a continuing,
widespread, persistent pattern of unconstitutional misconduct at the school. There is
no evidence that the School District knew of Tate’s actions toward Plamp.
Additionally, there is also no evidence that it had knowledge of any other complaints
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made against Tate or any other teacher in the past. Plamp’s argument that knowledge
of Tate’s unconstitutional conduct can be imputed to the School Board also fails.
“Imputation of constructive knowledge requires a showing that the underlying
unconstitutional misconduct was so widespread or flagrant that in the proper exercise
of its official responsibilities the governing body should have known of it.” Thelma
D., 934 F.2d at 933 (internal quotation and alteration omitted). As previously
established, Plamp failed to raise an issue of material fact as to this question. In sum,
because of the absence of notice to a relevant policymaking body, the district court
was correct in determining that it could not, as a matter of law, attribute to the School
District Tate’s unconstitutional misconduct. See, e.g., Jane Doe “A” v. Special Sch.
Dist. of St. Louis County, 901 F.2d 642, 646 (8th Cir. 1990).
Plamp further argues she has established a claim under § 1983 because the
School District failed to train specifically for the detection of teacher-on-student
sexual abuse and harassment. “To establish its failure to train theory, [the plaintiff]
must show that the Board’s ‘failure to train its employees in a relevant respect
evidences a deliberate indifference’ to the rights of the students.” Thelma D., 934
F.2d at 933 (quoting City of Canton, Ohio v. Harris, 489 U.S. 378, 389 (1989)). The
policymaking body must have “notice that its procedures were inadequate and likely
to result in a violation of constitutional rights.” Thelma D., 934 F.2d at 934. There
are two ways that Plamp could have established such notice, and we agree with the
district court that for the purposes of avoiding summary judgment she has satisfied
neither.
First, notice can be implied when a “failure to train officers or employees is so
likely to result in a violation of constitutional rights that the need for training is
patently obvious.” Id. As outlined above, the School District had sexual-harassment
policies and reporting procedures in place. While Plamp presented some evidence that
personnel never received training specifically addressing teacher-on-student
harassment, such testimony only raises concerns about the administration of the
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Board’s policies. This would, at most, raise a question about whether the program
was negligently administered, but it is not alone a sufficient basis upon which to find
liability for failure to train. See Harris, 489 U.S. at 390–91 (“That a particular officer
may be unsatisfactorily trained will not alone suffice to fasten liability on the city, for
the officer’s shortcomings may have resulted from factors other than a faulty training
program. It may be, for example, that an otherwise sound program has occasionally
been negligently administered.” (internal citations omitted)); Thelma D., 934 F.2d at
934–35 (finding that a principal’s claim that he was never trained was insufficient to
invoke liability where “the record clearly indicates that the Board [had] developed and
implemented polices and procedures for handling complaints of sexual abuse”).
Second, Plamp could have shown that a pattern of violations put the
policymaking body on notice that the school’s response to regularly occurring
situations was insufficient to prevent the unconstitutional conduct. Thelma D., 934
F.2d at 935. Again, however, Plamp presented no evidence that the policymaking
body was aware that training procedures were inadequate because it, in fact, had no
notice of the on-going problem. Id. (“[T]he Board simply cannot be said to have
acquiesced in something of which they had no knowledge . . .”). As a result, we find
that Plamp failed to raise an issue of material fact as to whether the School District
failed to train its employees to prevent or report sexual harassment, and we affirm the
district court’s grant of summary judgment in favor of the School District with respect
to Plamp’s § 1983 claims.
C. Vicarious Liability for Battery Under State Law
Plamp additionally claims that insufficient evidence supported the jury’s
determination that the School District was not vicariously liable for Tate’s battery.
We disagree. “A jury verdict is entitled to extreme deference, and we will not set it
aside unless no reasonable jury could have reached the same verdict based on the
evidence submitted.” Craig Outdoor Adver., Inc. v. Viacom Outdoor, Inc., 528 F.3d
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1001, 1009 (8th Cir. 2008), cert. denied, 129 S. Ct. 1000 (2009) (internal citation
omitted). When reviewing the sufficiency of the evidence, “we consider the evidence
in the light most favorable to the jury’s verdict.” Id.
We addressed the scope of South Dakota’s law on vicarious liability in Red Elk
v. United States, 62 F.3d 1102 (8th Cir. 1995), and we determined that
“‘foreseeability’ is central to the analysis” of whether the complained-of acts occurred
within the scope of employment such that an employer can be held vicariously liable
for the actions of its agent. Red Elk, 62 F.3d at 1107. Based on the evidence
presented, a reasonable jury could have found that Tate was acting outside the scope
of his employment when he battered Plamp and that the School District could not have
foreseen his actions. Evidence indicated that Tate was not authorized to touch
students in his class. He was not authorized to counsel his students regarding health
issues, such as eating disorders. There is nothing to indicate that Tate had spoken with
the school administration about his concerns over Plamp’s appearance so as to cause
concern. And, furthermore, there is no evidence that there were similar instances of
harassment or abuse in the past that would have indicated to the School District that
a teacher would engage in such behavior. See Leafgreen v. Am. Family Mut. Ins. Co.,
393 N.W.2d 275, 280–81 (S.D. 1986) (“[F]oreseeable is used in the sense that the
employee’s conduct must not be so unusual or startling that it would be unfair to
include the loss caused by the injury among the costs of the employer’s business.”).
We conclude, therefore, that there was sufficient evidence for a reasonable jury to
have found that Tate acted outside the scope of his employment. We refuse to disturb
the jury’s verdict as to the School District’s vicarious liability.
D. Jury Instruction Regarding Source of Payment
Plamp’s final contention is that the district court erred in refusing to instruct the
jury that it was not permitted to consider the source of any potential damage payment
to Plamp. Plamp argues that a source-of-payment instruction was necessary to ensure
that the jury would not find for the School District simply out of concern that an
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award for Plamp would take money from the public coffers. We review the court’s
refusal to issue a jury instruction for abuse of discretion, Boesing v. Spiess, 540 F.3d
886, 890 (8th Cir. 2008), and we find no such abuse here. While an appeal to the
jury’s self-interest would have been improper, there is nothing in the record to indicate
that the School District acted in a manner so as to draw attention to the fact that the
jury, as taxpayers, would ultimately be responsible for financing any damage award.
Cf. Byrns v. St. Louis County, 295 N.W.2d 517, 520–21 (Minn. 1980) (finding
improper a counsel’s reference to the fact that the damage amount of any verdict
would come out of taxpayers’ money).
Additionally, in an effort to guard against potential prejudice, the district court
granted Plamp’s motion in limine to prohibit argument on source of payment in the
event that the jury returned a verdict in Plamp’s favor. We agree with the district
court’s conclusion that absent an appeal to the jury’s self-interest as taxpayers, a
source-of-payment instruction would simply “inject” into deliberations “an issue that
otherwise the jury might not even think about.” The decision not to issue the
instruction was well within the court’s discretion.
III.
For the foregoing reasons, we affirm. Furthermore, after consideration of
Plamp’s motion to strike portions of the School District’s joint appendix under Federal
Rule of Appellate Procedure 30(a)(2), we find it without merit and deny the motion.
See Stanton v. St. Jude Med. Inc., 340 F.3d 690, 695 (8th Cir. 2003).
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