United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER 
POLSTER CHAPPELL UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Lee County School
Board's Motion for Partial Summary Judgment (Doc.
71), to which GP, by and through her mother, JP, timely
filed a Response in opposition (Doc. 81) and, with
the Court's permission, sealed exhibits in support
thereof (Docs. 83, 84). The motion is fully briefed
and ripe for the Court's review. For the following
reasons, the Court grants in part the motion for partial
a school bullying case. GP, by and through her mother, JP,
filed this action on November 23, 2015 against the Lee County
School Board (LCSB), Lexington Middle School (LMS), and Linda
Caprarotta, the Principal of LMS, pursuant to Florida state
laws prohibiting bullying and harassment, as well as federal
claims pursuant to Title VI of the Civil Rights Act of 1964,
the Individuals with Disability Education Act of 2004, and
Section 504 of the Rehabilitation Act of 1973. (Doc.
1). GP filed an amended complaint (Doc. 17), of
which only one count survived a motion to dismiss (Docs.
26, 35). GP was permitted to file an
amended complaint, which was filed on June 14, 2016 (Doc.
37). She then sought leave to file another amended
complaint (Doc. 48), which was denied (Doc. 49).
GP's Second Amended Complaint (Doc. 37) was
ultimately stricken for failure to comply with Federal
Rule of Civil Procedure 15(a) and the Court's prior
Order (Doc. 35). (Doc. 62). GP was then
permitted one “final opportunity to
amend.” (Doc. 62 at 2, 3 (emphasis in
“Second Amended Complaint (Revised) and Demand for Jury
Trial” (hereinafter “Complaint”) (Doc.
63) was filed on January 10, 2017, and LCSB's Answer
was filed on January 17, 2017 (Doc. 64). The
Complaint alleges race or national origin discrimination in
violation of Title VI of the Civil Rights Act of 1964, 42
U.S.C. §§ 2000d, et seq. (Count One),
gender discrimination in violation of Title IX of the
Education Amendments of 1972, 20 U.S.C. § 1681 (Count
Two), and Florida state law claims of negligent infliction of
emotional distress (Count Three) and negligent supervision
(Count Four). LCSB's motion seeks summary judgment as to
the federal claims only, and GP's Response states that
she wishes to voluntarily dismiss the Title VI claim (Count
One). (Doc. 81 at 1 (“Plaintiff will not move forward
on Count One, and voluntarily dismisses it.”)).
Accordingly, the Court addresses only the Title IX claim.
GP is a
female student who attended LMS. Her claims arise out of an
incident during which she claims she was bullied by another
student while attending LMS, which is part of the LCSB. The
gist of her Title IX claim is that the LCSB treated similarly
situated male students more favorably, and that, because GP
is female, LCSB failed to adequately respond to her
complaints of bullying and was deliberately indifferent to
her federally protected rights. GP alleges that she suffered
physical and emotional damages as a result.
undisputed facts are these. While in orchestra class on
November 22, 2013, GP was hit in the face by a spiral
notebook swung by another student, NM, after they had a
verbal altercation. NM blocked GP's ingress into the band
locker room, which led her to call NM a derogatory name. NM
then left, retrieved the notebook, returned to the room, and
hit GP in the face. GP and other female students reported the
incident to the substitute teacher, and then to LMS Principal
Linda Caprarotta. This was the first time that GP reported to
anyone at LMS that she was being bullied or harassed by
another student, and no one else reported to LMS any
instances of bullying or harassment of GP by NM. However, GP
alleges that she told her peers about other prior incidents.
reporting NM's conduct to Caprarotta, GP went home on the
school bus on Friday afternoon. No action was taken by LMS
personnel until Monday, November 25, 2013, at which time LMS
Assistant Principal Jason Peters initiated an investigation
into the incident. During Peters' investigation, he and
Caprarotta interviewed GP and her mother. Peters also
interviewed NM, during which NM admitted to striking GP in
the face with the notebook but denied any prior instances of
bullying. Following the meeting, LMS changed GP's
schedule by removing her from the class she shared with NM in
an effort to ensure that she would have no further contact
with NM. NM was also instructed by Peters that he was not to
have any contact with GP. Both GP and NM were told to report
any contact with each other to the administration
immediately. On November 26, 2013, GP and her mother filed a
formal bullying complaint with LMS, alleging that NM had been
bullying GP since September 2013.
the formal complaint was filed, LMS began a bullying
investigation. As part of that investigation, school guidance
counselor Julie Claprood interviewed twelve students from the
class GP and NM shared, including GP. Claprood took written
statements from each student during their interview.
Ultimately, LMS concluded that “bullying, ” as
that term is defined in the code of conduct, had not
occurred, but that GP was the victim of a battery by NM. On
December 4, 2013, GP's mother was informed of the
investigation's findings and told that NM would be
disciplined. NM was suspended from school for two days on
December 9, 2013. GP's schedule remained changed such
that she no longer had any classes with NM, and the
school's instructions to both GP and NM to avoid contact
with the other also remained in place. NM never again spoke
to GP after they no longer had any classes together.
judgment is proper “when the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is
entitled to judgment as a matter of law.” Josendis
v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292,
1314 (11th Cir. 2011); Fed.R.Civ.P. 56(a), (c). The inquiry
is “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is
so one-sided that one party must prevail as a matter of
law.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 251-52 (1986). The movant bears the burden of
showing the absence of dispute as to material facts, and upon
such a showing the burden shifts to the non-moving party to
establish that a genuine dispute exists. Celotex Corp. v.
Catrett, 477 U.S. 317, 323-24 (1986). The evidence must
be viewed in favor of the non-moving party and all inferences
drawn in her favor. Anderson, 477 U.S. at 255.
IX of the Education Amendments of 1972 prohibits
discrimination on the basis of sex. It provides, in pertinent
part, 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 education program or activity receiving Federal
financial assistance[.]” 20 U.S.C. § 1681(a). At
the outset, it is not entirely clear whether GP is attempting
to show a Title IX violation based solely on LCSB's
discriminatory intent via its deliberate indifference, a
student-on-student harassment claim, or both.
intent may be shown by establishing deliberate indifference.
Liese v. Indian River Cnty. Hosp. Dist., 701 F.3d
334, 347 (11th Cir. 2012). In Title IX cases, deliberate
indifference, and thus discriminatory intent, may be shown by
establishing that a recipient of federal funds was actually
aware of the discrimination and refused to act on that
knowledge. Id. Where Title IX cases do not involve
an official policy of the recipient, damages are available
only where “an official who at a minimum has authority
to address the alleged discrimination and to institute
corrective measures on the recipient's behalf has actual
knowledge of discrimination in the recipient's programs
and fails adequately to respond.” Gebser v. Lago
Vista Indep. Sch. Dist.,524 U.S. 274, 290 (1998). Thus,
“[f]or an organization to be liable for Title IX
purposes, [Supreme Court precedent] requires the deliberate
indifference of ‘an official who at a minimum
has authority to address the alleged discrimination
and to institute corrective ...