January 20th, 1998

Precedential

94-8667

                                                                          PUBLISH


              IN THE UNITED STATES COURT OF APPEALS
                     FOR THE ELEVENTH CIRCUIT

                      -------------------------------------------
                                                                    FILED
                                   No. 94-8667                    U.S. COURT OF APPEALS
                     -------------------------------------------- ELEVENTH CIRCUIT
                                                        04/05/99
                 D. C. Docket No. 91-CV-47-2-MAC (WDO)
                                                     THOMAS K. KAHN
                                                         CLERK

CAROL FLOYD, CARLA FLOYD, MARY ANN DRAKE,

                                                   Plaintiffs-Appellants,
                                                   Cross-Appellees,

     versus


IRIS WAITERS, Security Chief, Board of Public
Education and Orphanage for Bibb County,
WILLIAM DECKER BOOKER, Security Guard, Board
of Public Education and Orphanage for Bibb
County,

                                                   Defendants,

KENNETH BRONSON, Security Guard, Board of
Public Education and Orphanage for Bibb
County, JOHN NICHOLSON, Head of Operations,
Board of Public Education and Orphanage for
Bibb County, STEPHEN MASSEY, President, Board
of Public Education and Orphanage for Bibb
County, THOMAS HAGLER, Superintendent, Board
of Public Education and Orphanage for Bibb
County, HARRY TINKER,

                                                   Defendants-Appellees,
                                                   Cross-Appellants.
               ----------------------------------------------------------------
                  Appeal from the United States District Court
                          for the Middle District of Georgia
               ----------------------------------------------------------------
                                      (April 5, 1999)


   ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES


Before EDMONDSON and COX, Circuit Judges, and FAY, Senior Circuit Judge.




EDMONDSON, Circuit Judge:

     We earlier decided this case in Floyd v. Waiters, 

133 F.3d 786

 (11th

Cir. 1998). The Supreme Court vacated our judgment and instructed us to

reconsider the case in the light of its decision in Gebser v. Lago Vista

Indep. Sch. Dist., 

118 S. Ct. 1989

 (1998). We have done so. We reinstate

our prior decision and opinion.

     Briefly stated, in Floyd, we wrote that a Title IX plaintiff must

establish two things to survive summary judgment in a cause of action

against a school district like Bibb County’s for the discriminatory acts of

its employees. First, some supervisor with authority to take corrective

action was placed on notice of the bad conduct. See 

id.

 at 792 & n.13.

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Second, the supervisor possessing this authority was a school official high

enough up the chain-of-command that his acts constitute an official

decision by the school district itself not to remedy the misconduct. See id.

at 790-792. Given the circumstances of this case, we held that there could

be no Title IX liability.

      In Gebser, the Supreme Court faced a sexual-harassment-by-a-

teacher case under Title IX. The Court pointed out the contractual nature

of Title IX and rejected school district liability based on either respondeat

superior or constructive notice. See Gebser, 

118 S. Ct. at 1997

. Then the

Court tied school district liability to an official decision by the school

district not to remedy a known act of misconduct. For school district

liability, the Court stressed that some “appropriate person” in the school

district must have actual notice of the misconduct. See 

id. at 1999

.

      The Court did not go into detail about who would be an appropriate

person; it did not need to do so to decide Gebser: in Gebser no one in the

pertinent school district other than the offending teacher himself knew of

his misconduct. See 

id. at 1993

. The Court did say, however, that the
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appropriate person must necessarily be an “official” of the school district

and must have the authority to end the discrimination. See 

id. at 1999

. But

these preconditions were set out in the context of “at a minimum” -- a

minimum which was not met in Gebser -- and not set out as a fully

developed, complete standard.*

     In our view, our decision in this case is consistent with the Supreme

Court’s decision (and reasoning) in Gebser. The judgment of the district

court is again AFFIRMED.




     *
      By the way we, given the record before us, also conclude as a
matter of law that Mr. Waiters and Mr. Tinker (the two district
employees who have been especially singled-out by plaintiffs) were not
school district school officials and that they also lacked authority to end
the pertinent discrimination.
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