United States District Court, Eastern District of Pennsylvania
January 28, 2000
ROBERT WARREN, A MINOR BY AND THROUGH LORI ORLANDO, HIS PARENT AND NATURAL GUARDIAN, PLAINTIFF,
READING SCHOOL DISTRICT, GERALDINA SEPULVEDA, IN HER INDIVIDUAL AND OFFICIAL CAPACITY AS PRINCIPAL OF THE 10TH AND GREEN ELEMENTARY SCHOOL, AND JAMES A. GOODHART, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY AS SUPERINTENDENT OF THE READING SCHOOL DISTRICT, DEFENDANTS.
The opinion of the court was delivered by: Joyner, District Judge.
This action was brought on behalf of plaintiff Robert Warren,
alleging claims under Title IX, 20 U.S.C. § 1681, et seq., and
other federal and state claims. Plaintiff's claims are based on
allegations of sexual abuse by Plaintiff's school teacher, Harold
Brown. A jury trial was held, and the jury returned a verdict
against Reading School District on Plaintiff's Title IX claim,
awarding $400,000 in damages. Defendant Reading School District
filed a post trial motion for judgment as a matter of law under
Fed.R.Civ.P. 50(b) or, in the alternative, for a new trial on the
Title IX claim under Fed.R.Civ.P. 59, which is presently before
the Court. For the following reasons, Defendant's Motion is
For the purposes of this Motion the facts will be viewed in the
light most favorable to the Plaintiff. In April, 1995, Robert
Warren ("Robbie") transferred into the Tenth and Green Elementary
School, where he was assigned to Harold Brown's fourth grade
classroom. At some point after Robbie's transfer, Mr. Brown asked
Robbie to stay after school, locked the classroom door, then
asked him to participate in an activity that Mr. Brown called
"shoulders." This activity involved Robbie doing squats with his
head between Mr. Brown's legs and his shoulders on Mr. Brown's
thighs. This took place two or three times per week during the
school year. Mr. Brown also drove by Robbie's house over the
following summer, picked Robbie up, and took him to a "secret
place" near the woods where they again engaged in "shoulders."
In early November, 1995, Robbie's mother discovered Robbie's
journal and read an entry in which Robbie described engaging in
"shoulders" with Mr. Brown at a secret spot. She spoke to Robbie,
then reported the incident to the Berks County Children and Youth
Services. Mr. Brown was suspended with pay, and he ultimately
resigned his position.
An action was brought against Defendants on behalf of
Plaintiff, alleging claims under Title IX, 20 U.S.C. § 1681, et
seq., and other federal and state claims. The jury returned a
verdict against Defendant Reading School District, awarding
$400,000 in damages. Reading School District subsequently filed
this Motion for judgment as a matter of law, or in the
alternative a new trial.
I. MOTION FOR JUDGMENT AS A MATTER OF LAW
A renewed motion for judgment as a matter of law pursuant to
Fed.R.Civ.P. 50(b) should only be granted if, "viewing the
evidence in the light most favorable to the non-movant and giving
it the advantage of every fair and reasonable inference, there is
insufficient evidence from which a jury could reasonably find
liability." Coleman v. Kaye, 87 F.3d 1491, 1497 (3d Cir. 1996)
(citations omitted). A mere scintilla of evidence is not enough.
See Walter v. Holiday Inns, Inc., 985 F.2d 1232, 1238 (3d Cir.
1993). Instead, there must be sufficient "evidence upon which the
jury could properly find a verdict for that party." Lightning
Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir. 1993)
(citations omitted). In making the determination, the Court "may
not weigh the evidence, determine credibility of witnesses, or
substitute its version of the facts for the jury's version."
Defendant's Motion argues that
plaintiff introduced no evidence from which the jury
could determine that an official of the Reading
School District who, at a minimum, had authority to
address alleged discrimination and to institute
corrective measures on the School District's behalf
had actual knowledge of, and was deliberately
indifferent to Harold Brown's conduct.
Defendant's Motion at ¶¶ 1-3. Defendant's argument is
based on Gebser v. Lago Vista Independent School
District, 524 U.S. 274, 118 S.Ct. 1989, 141 L.Ed.2d
277 (1998), in which the Supreme Court limited a
plaintiff's ability to recover against a school
district under Title IX to situations in which "an
official of the school district who at a minimum has
authority to institute corrective measures on the
district's behalf has actual notice of, and is
deliberately indifferent to, the teacher's
misconduct." Gebser, 524 U.S. at 284, 118 S.Ct.
The Court finds that the jury was presented with sufficient
evidence to find that Dr. Sepulveda, the principal at the Tenth
and Green Elementary School, had actual notice of, and was
deliberately indifferent to Mr. Brown's misconduct. Carlos
Mercado, the parent of a boy who had previously been a student in
Mr. Brown's classroom, testified that he told Dr. Sepulveda that
he "wanted to talk to her about Mr. Brown taking my kid to his
house, that there's no reason for him to take him to his house
and give money to him to lift him up and down." Dr. Sepulveda
apparently walked out, saying that she was in a hurry, but
directed Mr. Mercado to speak to the school's guidance counselor,
Frank Vecchio. Mr. Mercado did so, repeating his complaint to Mr.
The jury also received evidence from two "supervisory
conference" memoranda, in which Mr. Brown was evaluated. The
first such memorandum, dated March 12, 1969, stated that "[w]e
also discussed his preparation for graduate school — children in
his class — and his involvement with children after school
hours." The second memorandum, dated October 24, 1995, stated "it
has been brought to my attention that the games that you play
with the students in the classroom involve physical contact. For
the best interest of all concerned, this situation must `stop'."
Dr. Sepulveda testified that this memorandum refers not to
inappropriate sexual contact, but rather to a parent's complaint
that inappropriate "horseplay" was occurring in Mr. Brown's
classroom during recess.
Considering this evidence together, the jury could reasonably
have found that Dr. Sepulveda had notice of accusations that Mr.
Brown was engaging in inappropriate sexual conduct with students.
Taking the evidence chronologically, the 1969 supervisory
conference memorandum was surely ambiguous, but may have at least
raised the jury's suspicion. Mr. Mercado's conversation with Dr.
Sepulveda, then Mr. Vecchio, when combined with this memorandum,
may have strengthened that suspicion. Then, in considering the
1995 memorandum, the jury may not have believed Dr. Sepulveda's
argument that she was referring to "horseplay" in the classroom
during recess when she wrote, "the games you play with the
students in the classroom involve physical contact. For the best
interest of all concerned, this situation must `stop'." Although
this last memorandum comes a few months after Mr. Brown's
contacts with Robbie, the jury may have found it probative,
especially when combined with the other evidence in this case, of
Dr. Sepulveda's credibility generally, and more specifically what
Dr. Sepulveda and the Reading School District knew before Mr.
Brown's contacts with Robbie. The 1995 memorandum sheds light on
the 1969 memorandum, as well as on Mr. Mercado's conversation
with Dr. Sepulveda. Taken together, all of this evidence could
lead a reasonably jury to find that Dr. Sepulveda had knowledge
of Mr. Brown's behavior.
Defendant contends that even if Dr. Sepulveda had knowledge of
Mr. Brown's behavior, as principal of the Tenth and Green
Elementary School she is not an official who has authority "to
institute corrective measures on the district's behalf" within
the meaning of Gebser. Defendant acknowledges that Dr.
Sepulveda had "supervisory authority over the teachers at the
school." Defendant's Memorandum at 10. However, Defendant points
to Dr. Sepulveda's testimony that her duty in the face of a claim
of sexual misconduct is to "obtain statements from the teachers
involved and `turn the matter over to the
people at the school district administrative building.'" Id.
Defendant cites to a case in the District of Rhode Island for the
proposition that "a duty to report information to appropriate
authorities is plainly not an `authority to take corrective
action' because the report itself could not have ended the
discrimination.'" Liu v. Striuli, 36 F. Supp.2d 452, 466 (D.R.I.
1999). However, this quotation is taken somewhat out of context.
The full sentence in Liu begins "Such a duty . . .", and is
preceded by several sentences that both limit the significance of
the holding and make it clear that it is inapplicable to this
case. The Court in Liu is referring not to any duty to report
information, but rather just to the type of duty to report that
it describes in the preceding sentences. The complete paragraph
from which Defendant's quotation is taken is:
Vicarious liability also cannot be foisted upon the
College through D'Arcy's alleged inaction because he
is not an official of the College "with authority to
take corrective action to end the discrimination."
Gebser, 118 S.Ct. at 1999. D'Arcy, as Director of
Financial Aid, was not a supervisor of Striuli nor
was he an official who had the authority to police
relationships between faculty and doctoral students.
D'Arcy had no power to discipline or even to
question Striuli about the relationship. If, as Liu
argues, D'Arcy had a duty under the College's sexual
harassment policy to report to the appropriate
authority his knowledge of Striuli's relationship
with Liu because it may have violated the prohibition
on amorous faculty-student liaisons, this duty was
no more than that which every employee of the College
had. Such a duty to report information to
appropriate authorities is plainly not an "authority
to take corrective action" because the report itself
could not have ended the discrimination.
Liu, 36 F. Supp.2d at 466 (emphasis added). Dr. Sepulveda,
unlike the Director of Financial Aid in Liu, was a supervisor
of Mr. Brown, and certainly had power to question Mr. Brown about
the relationship. Further, her duty to respond to complaints of
sexual abuse against a teacher, which Defendant compares to the
duty in Liu, was certainly not "no more than that which every
employee of the [School District] had." Id. The facts of Liu
are thus significantly different from the facts in this case.
Although the issue has not been addressed by the Third Circuit,
this Court does not believe that the Supreme Court's intention in
Gebser was to exclude a school principal from the list of
authorized people whose non-feasance in the face of an allegation
of sexual misconduct can lead to school district liability. The
Court in Gebser referred to the principal as an "official," and
discussed the fact that the information he had received was
"insufficient to alert the principal to the possibility that [the
offending teacher] was involved in a sexual relationship with a
teacher." Gebser, 524 U.S. at 292, 118 S.Ct. 1989.*fn1 This
discussion would not have been necessary if the principal's
actual knowledge would not have satisfied the standard set out by
Judge Bechtle of this District addressed a similar Title IX
case in Miller v. Kentosh, 1998 WL 355520 (E.D.Pa.). He
dismissed the claims against the school district on summary
judgment, concentrating much of his discussion on whether the
principal in that case had actual knowledge of the teacher's
misconduct, without any discussion of the particular duties and
responsibilities of the principal in that case. Miller, 1998 WL
355520 at *6. Judge Bechtle thus seems to have agreed that a
school principal is generally an appropriate official under
Gebser, as otherwise the discussion of the principal's
knowledge would have been unnecessary. In Canty v. Old
Rochester Regional Sch. Dist., 66 F. Supp.2d 114 (D.Mass. 1999),
a similar case in another district, the Court denied summary
judgment in part because the principal in that case privately
acknowledged to parents that he believed the allegations of
sexual misconduct. The Court in Canty treated the principal's
admission as satisfying the Gebser requirement. Id. at
Thus, in light of the Supreme Court's reasoning in Gebser,
the cases discussed above, and the particular facts of this case,
this Court finds that Dr. Sepulveda is an official with authority
"to institute corrective measures on the district's behalf"
within the meaning of Gebser, and therefore rejects Defendant's
contention that the jury's verdict was wrong as a matter of law.
II. MOTION FOR NEW TRIAL
Under Fed.R.Civ.P. 59, the standard for granting a new trial is
if "the verdict is contrary to the great weight of the evidence
or errors at trial produce a result inconsistent with substantial
justice." Sandrow v. United States, 832 F. Supp. 918 (E.D.Pa.
1993) (citations omitted). A new trial should only be granted
"where a miscarriage of justice would result if the verdict were
to stand." Olefins Trading, Inc. v. Han Yang Chemical Corp.,
9 F.3d 282, 289 (3d Cir. 1993).
Defendant's motion first argues that the jury's verdict is
against the weight of the evidence, for the same reasons that it
argued a judgment as a matter of law was appropriate in this
case. "[N]ew trials because the verdict is against the weight of
the evidence are proper only when the record shows that the
jury's verdict resulted in a miscarriage of justice or where the
verdict, on the record, cries out to be overturned or shocks our
conscience." Williamson v. Consol. Rail Corp, 926 F.2d 1344,
1353 (3d Cir. 1991). As discussed in Section One (I) above, the
Court does not agree that the jury's verdict is against the
weight of the evidence, let alone that it shocks our conscience
or resulted in a miscarriage of justice.
The remainder of Defendant's arguments for a new trial consist
of arguments that the Court erred in previous rulings. Defendant
argues that the Court erred by not granting a mistrial after
Plaintiff's counsel read to the jury a portion of a deposition
transcript in which a witness affirmed that he was "aware of any
prior incidents at the Reading School District of sexual abuse by
teachers against students." The Court responded with the
THE COURT: Members of the jury, the last portion of
the deposition testimony that was read to you is
stricken. You are to totally disregard that portion
of the testimony that has been read to you. You are
not to consider that in any way, shape, form, or
manner during the course of your deliberations.
If you cannot, you can let me know now. Do you
understand my instructions to you, members of the
A JUROR: Yes.
The test for whether a mistrial is appropriate when improper
remarks are made to a jury is "whether the improper assertions
have made it `reasonably probable' that the verdict was
influenced by prejudicial statements." Fineman v. Armstrong
World Indus., 980 F.2d 171, 207 (3d Cir. 1992) (citation
omitted). In light of the Court's curative instruction, the
improper evidence read by Plaintiff's attorney did not make it
reasonably probable that the verdict would be influenced by
prejudicial statements, so a mistrial was not appropriate on this
basis. The Court stands by its previous ruling.
Defendant also argues that the Court erred in denying
Defendant's Motion In Limine to preclude the expert testimony
of Chester Kent. Defendant puts forward four arguments for the
exclusion of Dr. Kent's testimony: (1) that Dr. Kent's testimony
does not assist the trier of fact to understand the evidence or
determine a fact in issue; (2) that Dr. Kent's expert opinion was
predicated upon the incorrect legal standard under 42 U.S.C.
§ 1983; (3) that in forming his opinion Dr. Kent relied upon
evidence that is either inadmissible or not reasonably relied
upon by experts in his field; and (4) that the prejudicial effect
of Dr. Kent's testimony far outweighs its probative value. With
regard to the first argument, Fed.R.Evid. 702 requires that
expert testimony will "assist the trier of fact to understand the
evidence or to determine a fact in issue." Dr. Kent, whose
qualification as an expert Defendant's Memorandum does not
question, assisted the jury with understanding administrative
policy and procedure in schools. Defendant argues that "[t]he
clear thrust of Dr. Kent's testimony was to question the
credibility of Dr. Sepulveda and other School District employees
by imputing motives and knowledge for which there was no
evidence." The Court disagrees: the thrust of Dr. Kent's
testimony was to assist the jury with understanding
administrative policy and procedure in schools. The jury may or
may not have drawn inferences about the credibility of Dr.
Sepulveda and other witnesses on the basis of Dr. Kent's
testimony, but there is nothing wrong with that. Indeed, that is
part of the jury's job. Dr. Kent is qualified as an expert, and
his testimony was proper.
The Court sees nothing to support Defendant's other arguments
that Dr. Kent's testimony was inappropriate, and Defendant's
memorandum points to nothing in the record that supports these
arguments. Accordingly, the Court stands by its previous ruling
denying Defendant's Motion In Limine to preclude the expert
testimony of Chester Kent.
Defendant next argues that the Court erred when it declined to
instruct the jury that Mr. Vecchio, a guidance counselor, was not
an "official" of the Reading School District within the meaning
of Gebser, 524 U.S. at 284, 118 S.Ct. 1989. The Court does not
agree with Defendant that it is clear that Mr. Vecchio was not an
appropriate official under Gebser when the principal, Dr.
Sepulveda, had transferred her authority to Mr. Vecchio. But more
importantly, even if Mr. Vecchio were not an appropriate official
under Gebser, for the reasons discussed in Section One (I)
above the jury's verdict would not be "contrary to the great
weight of the evidence," nor would the jury's verdict "produce a
result inconsistent with substantial justice." Sandrow, 832
F. Supp. at 918. Therefore, Defendant's request for a new trial on
this basis is denied.
Finally, Defendant argues that the Court erred in denying
Defendant's Motion In Limine to preclude the March 12, 1969
supervisory conference memorandum. Defendant argues that "there
was nothing in the language of the supervisory conference
memorandum which established that it pertained to improper
physical contact between Mr. Brown and any of his students." The
document in question stated, in part, "[w]e also discussed his
preparation for graduate school — children in his class — and his
involvement with children after school hours."
If the document in question really contained nothing relevant
to improper contact between Mr. Brown and any of his students, it
is unclear why Defendant would find the document objectionable,
or how it could possibly cause unfair prejudice. Indeed, the
Court finds that the document, combined with other evidence
presented to the jury in this case, was probative of whether the
Reading School District knew of Mr. Brown's inappropriate
activities with his male students. Defendant further argues that
"[e]ven if relevant, [the document's] prejudicial effect
outweighed its probative value and it should have been precluded
on that basis." The document may have been prejudicial, as all
good evidence is, but if so it was not unfairly prejudicial. If
the probative value of evidence were to be weighed against its
prejudicial value, only mediocre evidence (e.g. relevant but not
too prejudicial) would be allowed. Instead, Fed.R.Evid. 403
requires a balancing of probative value with "the danger of
unfair prejudice." Fed. R.Evid. 403 (emphasis added). If the
jury drew an inference from the March 12, 1969
supervisory memorandum, the Court does not see how this inference
was unfair. Defendant's request for a new trial on this basis is
Dr. Geraldina Sepulveda, the principal of the Tenth and Green
Elementary School, is an official with authority "to institute
corrective measures on the district's behalf" within the meaning
of Gebser, 524 U.S. at 284, 118 S.Ct. 1989. Thus, there was
sufficient evidence for the jury to find against the Reading
School District in this case, and Defendant's motion for judgment
as a matter of law is denied. The Court finds that it did not err
in its rulings: (1) denying Defendant's motion for a mistrial
after plaintiff's counsel read inadmissible testimony to the
jury; (2) allowing the expert testimony of Dr. Kent; (3) not
instructing the jury that guidance counselor Mr. Vicchio was not
an appropriate official within the meaning of Gebser; and (4)
allowing admission of the March 12, 1969 supervisory conference
memorandum. Further, the Court does not agree that the verdict is
against the weight of the evidence. Therefore, Defendant's motion
for a new trial is denied.
An appropriate Order follows.