UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ROBERTA LYNN FRYE,

Plaintiff-Appellant,

and

BARBARA LITTLETON,

Plaintiff, No. 98-1445

v.

BOARD OF EDUCATION OF THE COUNTY

OF OHIO, WEST VIRGINIA,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of West Virginia, at Wheeling.

Frederick P. Stamp, Jr., Chief District Judge.

(CA-96-154-5)

Argued: October 30, 1998

Decided: January 21, 1999

Before WILKINSON, Chief Judge, WIDENER, Circuit Judge, and

WILSON, Chief United States District Judge for the Western

District of Virginia, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Joseph Jacob John, II, Wheeling, West Virginia; John J.

Pizzuti, CAMILLETTI, SACCO & PIZZUTI, L.C., Wheeling, West
Virginia, for Appellant. Nancy W. Brown, STEPTOE & JOHNSON,

Clarksburg, West Virginia, for Appellee. ON BRIEF: Karen Kahle,

STEPTOE & JOHNSON, Wheeling, West Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Appellant Roberta Lynn Frye brought suit against appellee Board

of Education of Ohio County, West Virginia, alleging sexual harassment by her teacher, William D. Hartlieb. Frye pressed claims under

federal and state law, seeking monetary damages from the Board.

After the jury returned a verdict in favor of the Board on all counts,

Frye filed motions for judgment as a matter of law and for a new trial.

The district court denied both motions. Frye appeals these denials. We

affirm the judgment of the district court.

I.

In the fall of 1992, Frye was a fifteen-year-old sophomore at

Wheeling Park High School in Ohio County, West Virginia. She took

English from Hartlieb five days a week. Frye alleges that starting in

September of that year, Hartlieb began to engage in inappropriate

behavior with her while she was in class. For instance, he allegedly

told her to wear tighter clothing, shorter skirts, and her hair "natural."

In addition, he regularly touched her hair and arm. Similarly, Frye

alleges that Hartlieb occasionally would touch her breasts and the

inside of her thigh. Hartlieb maintained that he touched Frye in a nonsexual manner in order to offer her positive reenforcement and to

motivate her. He testified that Frye misread his intentions.

On October 29, 1992, Frye reported Hartlieb's conduct to another

teacher who then took her to George Krelis, Wheeling Park's princi-

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pal. Krelis asked Ronald DiLorenzo, Wheeling Park's guidance counselor, to prepare a written statement embodying Frye's complaints for

Frye to sign. Krelis simultaneously took steps to begin an investigation of Frye's allegations. For instance, within a week of Frye's complaint, Krelis and Assistant Principal Eric Carder drove to Frye's

house to consult with her mother, Barbara Littleton. Littleton indicated that she wanted her daughter switched to another English class.

Krelis agreed and moved Frye to another English class at the end of

the quarter, seven school days from the day of her complaint. He

instructed Frye to contact him if she had any additional problems with

Hartlieb. Frye did not contact him.

The Board placed Hartlieb on a "plan of assistance" as a result of

Frye's complaint.1 Frye claims that as a result of Hartlieb's behavior,

she suffers from post-traumatic stress disorder.

On October 19, 1994, Frye brought charges under both federal and

state law in state court. On October 2, 1996, the Board removed the

case to federal district court which then denied Frye's motion to

remand. The case went to a jury on Frye's claims under Title IX of

the Education Amendments of 1972, 20 U.S.C. #8E8E # 1681-1688, The

West Virginia Human Rights Act, W. Va. Code #8E8E # 5-11-1 to -20, and

common law negligence. The jury returned verdicts in favor of the

Board on all counts. Frye filed motions for judgment as a matter of

law and for a new trial. The district court denied the motions. Frye

appeals, inter alia, those denials.

II.

Frye argues that the district court erred in denying her motions for

judgment as a matter of law and a new trial with respect to her Title

IX, West Virginia Human Rights Act, and common law negligence

claims. We hold that the jury verdict had substantial support in the

evidence.

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1 Ohio County schools utilize several levels of discipline. The first level

is a verbal reprimand from a supervisor. The second level is a plan of

assistance or plan of improvement. The third level is suspension without

pay. The highest level of discipline is dismissal or discharge.

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Initially, Frye claims that the district court erred in denying her

motions for judgment as a matter of law and a new trial with respect

to her Title IX claim. We disagree. In order to hold a school board

liable for the sexual harassment of one of its teachers, a plaintiff must

demonstrate that the board had actual notice of the harassment and

was deliberately indifferent to it. Gebser v. Lago Vista Indep. Sch.

Dist., 118 S. Ct. 1989, 1999 (1998). Sufficient evidence supports the

conclusion that the Board responded adequately to Frye's complaint.

On the day Frye reported Hartlieb's alleged conduct, Krelis

requested that DiLorenzo, the school's guidance counselor, record her

version of the events. That same day, Krelis alerted his superiors of

the allegation and began to compile the information necessary to complete an investigation. Three school days later, Krelis met with the

Board's legal counsel, Arthur Recht, to catalogue the Board's legal

options with respect to Hartlieb should the allegations prove true.

Within a week's time, Krelis and Carder, Wheeling Park's assistant

principal, visited Frye's home to speak directly with her mother. After

this meeting, Krelis removed Frye from Hartlieb's class, just seven

school days after she filed her complaint. Finally, as a result of Frye's

allegations, the Board placed Hartlieb on a behavior modification program. Clearly, substantial evidence supports the conclusion that the

Board was not deliberately indifferent to Frye's allegations.

The same evidence supports the district court's denial of Frye's

motions with respect to her claim under the West Virginia Human

Rights Act. W. Va. Code §§ 5-11-1 to -20. Assuming the Human

Rights Act applies in this context, a board's liability for the harassment of one of its teachers depends in large part on the adequacy of

its response once it learns of the alleged harassment. See Conrad v.

ARA Szabo, 480 S.E.2d 801, 812 (W. Va. 1996). We hold that the

Board's response noted above provided the jury with sufficient evidence to decide that it was more than adequate.

Finally, Frye contends that the district court erred in denying her

motion with respect to her common law negligence claim. We hold

that the evidence of the Board's efforts to investigate Frye's claim,

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remove her from Hartlieb's classroom, and correct Hartlieb's behavior adequately supports the jury verdict.2 

III.

The judgment of the district court is therefore

AFFIRMED.

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2 Frye proffers several additional assignments of error. Specifically,

Frye claims that the district court erred in prohibiting Frye from introducing evidence concerning the Board's prior discharge of a former

guidance counselor; in prohibiting Frye from calling Board counsel,

Arthur Recht, as a witness; and in denying Frye's motion to remand to

state court on the ground that the Board's removal was untimely. We

have fully reviewed these claims and are convinced that each is without

merit. We affirm the district court as to each ruling.

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