FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

NOV 24 2000

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 99-14455

________________________

D. C. Docket No. 96-02845-CV-TWT-1

EDITH DAVIS, as Legal Guardian on 

behalf of JANE DOE, individually, 

Plaintiff-Appellant,

versus

DEKALB COUNTY SCHOOL DISTRICT, 

a Local Education Agency, (LEA), WILLIAM L. 

DUNCAN, JR., in his Individual and Official 

Capacity as Principal of Knollwood Elementary School, et al.,

Defendants-Appellees.

___________________

No. 99-14456

___________________

D.C. Docket No. 97–00382-CV-TWT-1

VICKI LINDSAY, individually and as Legal

guardian on behalf of Jane Doe, Individually,

Plaintiff-Appellant,

versus
2

DEKALB COUNTY SCHOOL DISTRICT, a

Local Education Agency (LEA), WILLIAM L.

DUNCAN, JR., in his Individual and Official

Capacity as Principal of Knollwood Elementary

School, et al.,

Defendants-Appellees.

___________________

No. 99-14457

___________________

D.C. Docket No. 97-00491-CV-TWT-1

DIANNA COLTON, Individually and as Legal

Guardian on behalf of Jane Doe, Individually,

Plaintiff-Appellant,

versus

DEKALB COUNTY SCHOOL DISTRICT, a

Local Education Agency (LEA), WILLIAM L.

DUNCAN, JR., in his Individual and Official

Capacity as Principal of Knollwood Elementary

School, et al.,

Defendants-Appellees.

________________________

Appeals from the United States District Court

for the Northern District of Georgia

_________________________

(November 24, 2000)
1

 Plaintiffs brought suit individually and as legal guardians of three students Mency

molested. 

2

 Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 118 S.Ct. 1989 (1998).

3

Before COX, BLACK and FAY, Circuit Judges.

PER CURIAM:

This is a sexual harassment/discrimination suit arising out of the acts of a

physical education teacher, Defendant Kelvin Mency (“Mency”), at Knollwood

Elementary School. Plaintiffs,1

 appellants here, filed complaints against the

DeKalb County School District (“DCSD”), William L. Duncan, Jr., principal of

Knollwood Elementary (“Duncan”), and Mency under Title IX of the Education

Amendments of 1972, 20 U.S.C. § 1681 (“Title IX”), Title 42 U.S.C. § 1983

(“section 1983"), and Georgia tort law. After consolidating the cases, the district

court granted summary judgment in favor of DCSD and Duncan. On appeal,

Plaintiffs contend that the district court erred in applying the incorrect legal

standard for institutional liability under Title IX, and in concluding that Plaintiffs

failed to create a jury question on their section 1983 claim. We do not decide

whether the district court applied the incorrect standard because we conclude,

under Gebser2

 and section 1983 jurisprudence, that Plaintiffs have failed to

produce any evidence that Defendants knew of or acted with deliberate
3

 The district court found undisputed evidence that Mency would tell the Plaintiffs,

individually and on different occasions, to meet him in empty classrooms, the physical education

equipment room, the teacher’s bathroom, or other places where no one could observe what

Mency was doing. The district court further found that Mency engaged in such acts as kissing

the Plaintiffs, exposing himself, fondling the Plaintiffs and masturbating in front of them. The

evidence also showed that Mency sodomized one of the Plaintiffs. 

4

indifference to Mency’s misconduct. Accordingly, we affirm the district court’s

judgment with respect to both claims.

I. Factual and Procedural History

Kelvin Mency, a seventh-grade physical education teacher and faculty

advisor of the Safety Patrol at Knollwood Elementary School, sexually molested

Plaintiffs during the 1993-1994 school year.3

 There is no evidence that anyone

witnessed any of these events. Moreover, the Plaintiffs never told their parents,

legal guardians, or anyone at school what was happening while the events were

occurring. In the fall of 1994, one of the Plaintiffs confided in a friend that Mency

was touching her inappropriately. The friend told a police officer who lectured at

the school, and the police began an investigation into Mency’s contact with

students. As a result, Mency resigned from his post. Mency was subsequently

convicted on six counts of child molestation and one count of criminal attempt to

commit child molestation, and is currently serving a 20-year sentence. 
4

 Plaintiffs sued Duncan in his individual and official capacity as Principal of Knollwood

Elementary School, and Mency in his individual and official capacity as former teacher at

Knollwood. On appeal, Plaintiffs do not argue that the district court erred in dismissing the

claim against Duncan in his individual capacity. 

5

After Mency’s criminal conviction, Plaintiffs brought this action against the

DCSD, Duncan, and Mency.4

 The complaints alleged violations of Title IX,

Section 1983, and Georgia tort law. The district court consolidated the cases by

consent order, and granted summary judgment in favor of DCSD on Plaintiffs’

Title IX claim. The district court concluded that Plaintiffs had failed to produce

any evidence that the school board or school superintendent had actual notice of

the sexual harassment. The district court went on to find that Plaintiffs also failed

to produce evidence that any official with supervisory authority knew or should

have known that Mency was molesting Plaintiffs. In addition, the district court

granted summary judgment in favor of Duncan and DCSD on Plaintiffs’ Section

1983 claim concluding that Plaintiffs could not show that Defendants either knew

that Mency was harassing Plaintiffs or that Defendants acted with reckless

disregard to the possibility that he would do so. 

Plaintiffs’ action against Mency proceeded to trial, and a jury found Mency

civilly liable to the Plaintiffs for the amount of $500,000 in compensatory damages

and $100,000 in punitive damages. The district court entered final judgment in

favor of the Plaintiffs and against Mency in accordance with the verdict. 
6

Subsequently, Plaintiffs filed this appeal requesting reversal of the District Court’s

orders granting summary judgment to DCSD and Duncan.

II Discussion

On appeal, Plaintiffs argue that the district court applied the wrong legal

standard for the institutional liability of a school district under Title IX. Plaintiffs

contend that the evidence, viewed in light of the proper standard, establishes that

the principal and other school officials were aware of facts sufficient to alert them

to Mency’s misconduct and that the school’s response was clearly unreasonable in

light of the known circumstances. On their section 1983 claim, Plaintiffs contend

that they produced sufficient evidence for a jury to find that DCSD and Duncan

knew that Mency was a danger to the Plaintiffs or that DCSD and Duncan were

deliberately indifferent to facts that put them on notice of the danger. We disagree. 

We review the grant of summary judgment de novo. See Gordan v.

Cochran, 116 F.3d 1438, 1439 (11th Cir. 1997). We, like the district court, are

required to view the facts in the light most favorable to the non-movant. See Walls

v. Button Gwinnett Bancorp, Inc., 1 F.3d 1198, 1200 (11th Cir.1993).

A. Title IX
7

Title IX provides, in pertinent part, that “[n]o person ... 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). The Supreme Court has recognized an implied

private cause of action for money damages in Title IX cases of intentional sexual

discrimination. Franklin v. Gwinnett County Public School, 503 U.S. 60, 75, 112

S.Ct. 1028, 1038 (1992). Moreover, the Court has held that sexual harassment of a

student by a teacher constitutes actionable discrimination for the purposes of Title

IX. Id.

After the district court granted summary judgment in the instant case, the

Supreme Court clarified the standard under which a school district may be held

liable under Title IX for a teacher’s sexual harassment of a student. See Gebser v.

Lago Vista Indep. Sch. Dist., 524 U.S. 274, 118 S.Ct. 1989 (1998). The Court held

that:

...a damages remedy will not lie under Title IX unless 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 program and fails

adequately to respond.

Id. at 290, 1999. Moreover, the Court decided that “the response must amount to

deliberate indifference to discrimination” for liability to attach. Id. The Court
8

concluded that the Lago Vista school district could not be held liable where the

only official alleged to have knowledge was the high school principal, and the

information consisted of a complaint from parents of other students that the teacher

had made inappropriate comments during class. Id. at 291, 2000. This

information, the Court reasoned, was “plainly insufficient to alert the principal to

the possibility that [the teacher] was involved in a sexual relationship with a

student.” Id. 

Following the Supreme Court’s decision in Gebser, the Eleventh Circuit

determined that a Title IX plaintiff must establish two things to survive summary

judgment in a cause of action against a school district for the discriminatory acts of

its employees: “First, some supervisor with authority to take corrective action was

placed on notice of the bad conduct. 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.” Floyd v. Waiters, 171 F.3d 1264 (11th Cir.), cert. denied, 120 S.Ct.

215 (1999). 

1. Supervisor With Authority to Remedy the Misconduct

The district court held that Plaintiffs could not recover under Title IX, as a

matter of law, because the evidence failed to show that the school board or school
5

 The district court granted summary judgment in the instant case prior to the Supreme

Court’s decision in Gebser. While Gebser precludes a damages recovery based upon the

imputation of knowledge to a school district, the Supreme Court did not hold that liability must

be predicated upon actual notice to the school board or superintendent. Rather, liability could

attach upon notice to an “appropriate person.” Gebser, 524 U.S. at 285-290, 118 S.Ct. at 1997-

1999. 

6

 We need not decide whether the district court’s alternative analysis conforms to the

rule embraced in Gebser, and leave for another day the task of delineating Gebser’s “appropriate

person.” 

9

superintendent had actual notice of the sexual harassment.5 Alternatively, the

district court found no evidence that any school official with supervisory authority

had notice that Mency was molesting the three students.6

 We find that it is

unnecessary to decide whether Duncan, as principal of Knollwood Elementary,

was a supervisory official with authority to take corrective action on behalf of the

school district. Assuming, arguendo, that a principal could be such, we find no

evidence to support the claim that Duncan acted with deliberate indifference to

notice of Mency’s misconduct.

2. Actual Notice

A school district must have actual notice before it can be held liable in

damages for intentional discrimination based on sex. See Gebser, 524 U.S. 274,

287-289, 118 S.Ct. 1989, 1998-1999 (reasoning that recovery based on principles

of vicarious liability or constructive notice is at odds with express enforcement

scheme requiring notice to an “appropriate person,” and would “divert [] education
7

 It is important to note that the Title IX standard does not affect an individual’s right to

recover against a school district as a matter of state law, or against the teacher in his individual

capacity under state law. In fact, Plaintiffs in the instant action succeeded in their action against

Mency entitling them to $600,000 in damages. See Gebser, 524 U.S. at 292, 118 S.Ct. at 2000.

8

 Due to a discrepancy between the parties as to the exact nature of Burrell’s complaint,

we have gone back to Burrell’s deposition testimony in the record to determine precisely what

Burrell told Duncan and other school personnel.

10

funding from beneficial uses where a recipient was unaware of discrimination in its

programs and is willing to institute prompt corrective measures”).7

 Defendant

DCSD contends that the school district did not have “actual notice” that Mency

was sexually abusing students until September 1994. Plaintiffs argue that the

school district had actual notice of Mency’s misconduct as early as November

1993. Plaintiffs do not contest the district court’s finding that Plaintiffs did not tell

their parents, any teacher, or any other school district employee about Mency’s

conduct when it was occurring. Instead, Plaintiffs contend that DCSD knew or

should have known that Mency was sexually abusing Plaintiffs because of a

complaint lodged by a student who is not a party to this case. 

In November 1993, another Knollwood student, Malissia Dan’Yell Burrell,

was playing touch football during an after-school physical education class taught

by Mency. In her deposition,8

 Burrell stated that she was playing center, and

Mency quarterback. On one play, Burrell felt Mency “touch [her] behind” as she

hiked the ball. Later, after the class had ended, Burrell was getting a drink from
9

 Davis reportedly told Duncan that “Mency [had] been fondling with [her] daughter.” 

However, even viewed in the light most favorable to the Plaintiffs, we find no legitimate basis

for Davis’ use of the word “fondling” after examining Burrell’s version of the incident.

10 Dr. Roosevelt Daniels, Duncan’s supervisor, testified in his deposition that “nothing

about sexual misconduct whatsoever” was ever communicated to him with regard to Burrell’s

complaint.

11

the water fountain when Mency “tried to touch” her inappropriately. The

following day, Burrell and her guardian, Helen Davis, came to school to discuss

Defendant Mency’s actions with Duncan.9

 Burrell told Duncan that Mency had

asked her to “come closer” toward Mency when hiking the football, and that, on

the next play, Mency had touched her behind as she hiked the ball to him. She also

told Duncan that Mency had tried to touch her at the water fountain after the game,

but she moved out of the way. According to Burrell, Mency did not try to put his

hand down her pants, and he did not actually make contact with her at the water

fountain.

As in Gebser, we cannot say that Burrell’s complaint was sufficient to alert

DCSD to the possibility that Mency was sexually harassing Plaintiffs.10 Burrell

complained to Duncan about a slight touching during a touch football game in

which she was playing center and Mency was playing quarterback. Afterwards, at

the water fountain, Burrell thought that Mency was about to touch her, but she

moved away. Although we can understand a parent’s misgivings about a Coach
12

playing quarterback with a female student playing center, Burrell did not suggest

that it was inappropriate. We agree with the district court that a complaint of an

incidental touching during an athletic event and a perceived imminent touching

could not, as a matter of law, apprise Defendants to the possibility that Mency was

sexually molesting Plaintiffs. Furthermore, even if such a complaint were

sufficient to constitute actual notice, Defendants responded with anything but

deliberate indifference.

3. Deliberate Indifference

After meeting with Burrell and Davis, Duncan contacted his supervisor,

Area Director Dr. Roosevelt Daniels. On Daniel’s instruction, Duncan directed the

school counselor, Yvonne Butler, and the school social worker, Corrie Wingfield,

to investigate Burrell’s complaint. Butler and Wingfield interviewed Burrell and

Pope, a student Burrell identified as having witnessed Mency touch Burrell. 

However, when Butler interviewed Pope, Pope denied seeing Mency touch Burrell. 

Pope did confirm that Mency slapped boys and girls at the after-school P.E. class

as praise for making good plays. Based on her interviews, Butler concluded that

Mency inadvertently touched Burrell during touch football and that Burrell

perceived that Mency tried to touch her after the game at the water fountain. 
13

Wingfield also interviewed Burrell and Pope individually. Unlike Butler,

Wingfield did not know why she had been asked to interview the students. Neither

student made any allegation of sexual or physical abuse, and Wingfield did not

perceive that she was even investigating a complaint of sexual misconduct. 

Duncan met with Mency to discuss the gravity of the situation. Mency

denied doing anything inappropriate, and stated that if he was patting the students

on the back, of which he couldn’t be sure, it was in the context of athletics. 

Duncan told Mency he disapproved of Mency’s conduct and directed him to stop

patting boys or girls on the back side. 

At the conclusion of the investigation, Duncan arranged a meeting with

Davis, Burrell, Butler, and Mency. Burrell recounted her allegations, but Mency

denied any intent or attempt to touch Burrell. Duncan invited questions from

Davis, but she didn’t have any. After discussion, Duncan concluded that Mency

might have touched Burrell inadvertently during the football game. However,

Burrell could not state that it was sexual in nature. Moreover, both Burrell and

Mency were in accord that no touching took place at the water fountain.

Even though the investigation failed to reveal reasonable evidence of

inappropriate conduct by Mency, Duncan took immediate corrective action. With

Davis’ approval, Duncan removed Burrell from the afer-school P.E. class with
11 The parties deposed these teachers during discovery of the present action.

14

Mency. Duncan offered to remove Burrell from her regular P.E. class with Mency,

but Burrell wanted to stay in the class. Burrell’s mother similarly rejected

Duncan’s offer to transfer Burrell to another school. Duncan instructed Mency to

avoid all contact with Burrell other than class. Duncan also forbade Mency from

being alone with Burrell or any female student. Finally, Duncan informed Davis

that she should contact Duncan’s supervisor if Davis thought anything further

should be done.

Duncan followed up with Burrell several times throughout the school year,

but Burrell had no further complaints. Duncan also monitored Mency for any

indiscretions, but he never observed Mency alone with female students. At least

three other teachers also testified that they never saw Mency alone with female

students, and they never witnessed him behave inappropriately around students.11 

Plaintiffs contend that Duncan acted with deliberate indifference because

Duncan did nothing to protect Plaintiffs in the face of actual knowledge that

Mency engaged in acts of discrimination. Plaintiffs complain that Duncan

neglected to interview any teachers or students about Mency’s conduct. Plaintiffs

also protest Duncan’s failure to direct anyone to monitor Mency. Plaintiffs make
12 Specifically, Plaintiffs rely on “Investigation Guidelines” set forth in Dealing With

Allegations by Students or Parents of Misconduct by Staff Members (approved Aug. 10, 1994). 

Although we address Plaintiffs’ contentions, we question whether these guidelines were in effect

when Burrell lodged her complaint in November of 1993.

15

the related argument that Duncan disregarded DeKalb County Schools policy12 in

the investigation of Burrell’s complaint. In support of this argument, Plaintiffs

point out that Duncan neglected to take a written statement from Burrell or Mency,

that he failed to open a file on the complaint, and that he failed to conduct the

school level investigation in cooperation with the school detective, as outlined in

school policy. Although Duncan followed school policy in alerting the school

counselor and social worker to the allegations, Plaintiffs complain that Duncan

failed to provide a written summary of the interviews to Daniels, as required. In

short, Plaintiffs maintain that if Duncan or Daniels had followed school district

policy, the school would have eradicated Mency’s abuse of Plaintiffs. 

We cannot find merit in Plaintiffs’ speculation. There is simply no

reasonable basis to believe that the failure to obtain written statements or to record

the meetings led to a failure to uncover relevant evidence or caused the

investigation to be any less thorough. We are similarly unpersuaded that Burrell or

Mency would have responded differently to questioning had they been asked to

provide a written statement. We reiterate that there is simply no evidence that

DCSD had “actual notice” of Mency’s misconduct until one of the Plaintiffs was
13 We would be remiss to overlook the district court’s error in commenting on one of the

Plaintiff’s sexual history. Pursuant to Fed.R.Evid., Rule 412(b)(2), evidence offered to prove the

sexual behavior or sexual predisposition of an alleged victim is admissible if otherwise

admissible and its probative value substantially outweighs the danger of unfair prejudice to any

party. We believe the prejudice to Plaintiffs substantially outweighed any probative value this

evidence could possibly have had, and thus, should not have been considered by the court on a

motion for summary judgment. The district court’s error in addressing this evidence is even

more serious in this case because Plaintiff was a minor. Thus, Plaintiff could not consent to

Mency’s sexual abuse because she did not possess the legal capacity to consent. Nevertheless,

we do not find that this error requires reversal because no reasonable juror could find that

DCSD, through Duncan, acted with deliberate indifference to Burrell’s complaint.

16

confronted by the school detective in September 1994. It is undisputed that

Mency’s sexual abuse of the Plaintiffs occurred in secret, where no one could

observe what he was doing. We also disagree with Plaintiffs’ characterization of

Duncan’s response to Burrell’s complaint. Even if Duncan, in response to

Burrell’s complaint, had interviewed teachers and asked them to monitor Mency,

there is no evidence they would have observed Mency involved in inappropriate

behavior. In fact, teachers deposed during the instant litigation did not observe

Mency engage in any inappropriate conduct around his students during the 1993-

94 school year. Furthermore, they testified that they would have reported it if they

had. 

Even drawing all reasonable inferences in favor of Plaintiffs,13 we must

agree with the district court that Plaintiffs have failed to create a genuine issue of

material fact that Duncan acted with deliberate indifference. Duncan contacted his

supervisor, and directed the school counselor and school social worker to interview
14 Although one could argue that this approach was not wise, that is not the question

before us.

17

Burrell and Pope, the witness identified by Burrell. Duncan interviewed Mency. 

Duncan then met with Davis, Burrell, Mency and Butler.14 Although he concluded

that nothing of a sexual or inappropriate nature had taken place, Duncan instituted

corrective measures. He removed Burrell from after-school P.E., and offered to

remove her from regular P.E. Duncan ordered Mency to stay away from Burrell

and not to be alone with female students. Duncan called Daniels who suggested

offering Burrell an administrative transfer. Duncan followed up with Burrell

several times over the course of the school year, and monitored Mency closely. 

Although ultimately ineffective in preventing Mency from discriminating against

Plaintiffs, the relevant question is whether Duncan’s actions amounted to

deliberate indifference. Cf. Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 456 n. 12

(5th Cir.) (en banc) (applying deliberate indifference standard for purposes of §

1983 analysis and recognizing that many good faith but ineffective responses may

satisfy a school official’s obligations), cert. denied sub nom. Lankford v. Doe, 513

U.S. 815, 115 S.Ct. 70 (1994). We hold, as a matter of law, that they did not. See

Gebser, 524 U.S. at 291 (equating deliberate indifference to “an official decision
15 Locating a policy ensures that a municipality is held liable only for those deprivations

resulting from the decisions of its duly constituted legislative body or of those officials whose

acts may fairly be said to represent official policy. Similarly, an act performed pursuant to a

custom that has not been formally approved by an appropriate decision-maker may fairly subject

a municipality to liability on the theory that the relevant practice is so widespread as to have the

force of law. Brown, 520 U.S. at 403-4. 

18

not to remedy the violation”). Thus, the district court correctly granted summary

judgment in favor of DCSD on Plaintiffs’ Title IX claim.

B. Section 1983

Plaintiffs claim that the district court erred by granting summary judgment

and finding DCSD and Duncan not liable under section 1983 for Mency’s

misconduct. A plaintiff seeking to impose liability on a municipality (school

district) under section 1983 must identify a municipal “policy” or “custom” that

caused a deprivation of federal rights. Board of County Comm’rs of Bryan Cty v.

Brown, 520 U.S. 397, 403, 117 S.Ct. 1382, 1388 (1997).15 But it is well

established that a municipality may not be held liable under section 1983 on a

theory of respondeat superior. See Monell v. Dept. of Social Servs., 436 U.S. 658,

98 S.Ct. 2018 (1978). Instead, “recovery from a municipality is limited to acts that

are, properly speaking, acts ‘of the municipality’ - that is, acts which the

municipality has officially sanctioned or ordered.” Pembaur v. City of Cincinnati,

475 U.S. 469, 478, 106 S.Ct. 1292, 1298 (1986). Moreover, it is not enough to

identify conduct properly attributable to the municipality. A plaintiff must show
16 Plaintiffs asserted three theories of recovery: (1) violation of DCSD policy; (2) failure

to investigate, train and report; and (3) a custom of inaction. 

19

that the municipal action was taken with the requisite degree of culpability, i.e.,

that the municipal action was taken with “‘deliberate indifference’” to its known or

obvious consequences. Brown, 520 U.S. at 407, 117 S.Ct. at 1390 (quoting City of

Canton v. Harris, 489 U.S. 378, 388, 109 S.Ct. 1197, 1204 (1989)). 

In essence, Plaintiffs claim that the Defendants failed to protect Plaintiffs

from Mency.16 In granting summary judgment, the district court concluded that the

Plaintiffs had failed to produce sufficient evidence to satisfy the requirement that

DCSD or Duncan knew of Mency’s conduct or were deliberately indifferent to

evidence that should have put them on notice. Thus, the only issue before us is

whether Plaintiffs created a triable issue that Defendants possessed the requisite

notice to establish institutional liability under section 1983. 

 The district court correctly held that the deliberate indifference standard

applies to section 1983 claims basing liability on a municipality’s actions in failing

to prevent a deprivation of federal rights. See Gebser, 524 U.S. at 291, 118 S.Ct. at

1999 (citing Brown, 520 U.S. 397, 117 S.Ct. 1382 (1997)). As stated at length in

our discussion of Plaintiffs’ Title IX claim, the record contains no evidence that the
20

Defendants knew that Mency was sexually harassing Plaintiffs, or that Defendants

were deliberately indifferent to information that should have put them on notice.

III CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s judgment.